Asylum: British Overseas Territories and Ferries
Baroness Hamwee Excerpts(4 years, 1 month ago)
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Baroness Williams of Trafford (Con)
The noble Baroness will appreciate that my right honourable friend the Home Secretary’s words do not accord with many of the things that were leaked. She is absolutely committed, as the noble Baroness will have heard, to accepting all the recommendations in the Wendy Williams lessons learned report. We are working through those now and we want a humane, fair but firm immigration system.
Baroness Hamwee (LD)
My Lords, are the reports intended as a message to people who seek sanctuary in the UK or as a dog whistle to the red wall?
Immigration and Social Security Co-ordination (EU Withdrawal) Bill
Baroness Hamwee ExcerptsMonday 5th October 2020
(4 years, 1 month ago)
Lords ChamberRead Full debate Immigration and Social Security Co-ordination (EU Withdrawal) Act 2020 View all Immigration and Social Security Co-ordination (EU Withdrawal) Act 2020 Debates Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: HL Bill 121-R-II Second marshalled list for Report - (30 Sep 2020)
The Deputy Speaker (Baroness Finlay of Llandaff) (CB)
As the noble Baroness, Lady Whitaker, has been unable to be contacted, I now call the noble Baroness, Lady Hamwee.
Baroness Hamwee (LD)
My Lords, I put my name to the amendment on behalf of these Benches. To be saying at this stage—three months from the end of the transition period and very close to the practicable end date of the negotiations—that our draft agreement is still on the table, as was said at the previous stage, feels like a denial of reality, and I follow the noble Lord, Lord Kerr, in that comment. Like the noble Lord, Lord Randall, I will be interested to know the up-to-date position.
Certainly a prudent Government would look for a mechanism to plug the gap, as the noble Baroness, Lady Primarolo, said, in case the draft slips off the table or is just not picked up—and this is the mechanism. I am very glad to support it, as I did in Committee when I too had an amendment on family reunion. At that stage, the Minister said that the Government had acted in good faith and that she hoped that the EU would do the same. Like the noble Lord, Lord Dubs, I cannot say that I regard the draft agreement as adequate. The principal obligations are not obligations—they are discretionary—but, whoever should take the blame for the stalemate, we must not let asylum seekers be the losers by being caught in the middle. They are not illegal, not unless and until their claim is refused.
This is likely not to be the first time that I will be taking a different view from the Minister about pull factors, especially when the push factors are so significant.
Of course we agree on the importance of safe and legal routes. That is the most important thing. Our view is that what is safest is to provide legal routes and deprive criminals of the opportunity to exploit people. It may be that our routes to that differ somewhat—perhaps they are not the means that the Home Secretary is considering—but that is not really for today. As has been said, our current rules are inadequate. The Government refer to that well-known paragraph 319X of the rules as providing the route that allows children to join relatives recognised as refugees, but the scope is very narrow, there are many restrictions and substantial fees are payable. As I understand it, the data does not separate out the categories or the basis of application, and those who take that route are included in the Home Office’s figures with other routes. Including all those routes, there were only 30 successful applications in 2018 and 54 in 2019. It is certainly not an adequate substitute for a successfully negotiated agreement on family reunion or a change in the UK’s rules, at least until an agreement or agreements are negotiated, as the amendment provides.
Working with the UNHCR and resettling people from the Middle East is not something we want to see replaced. The noble Lord, Lord Judd, the noble Baroness, Lady Lister, and others referred to the numbers in this plight across the world. As the noble Lord, Lord Dubs, said, we cannot take everyone but we can play our part. It seems to us that it is a policy decision for the Government whether to make it an “and” rather than an alternative.
Lord Rosser (Lab)
My Lords, unless action is taken now, the arrival of 2021 will see child refugees in Europe lose safe and legal routes to the UK since neither a right to family reunion nor access to the Dubs scheme, under which lone children had a legal route to sanctuary in the UK, will then be available. Family reunion under Dublin III regulations is currently the only available legal pathway to reach the UK from the EU for the purposes of claiming asylum. That pathway will no longer exist after the end of the Brexit transition period in three months’ time.
The Government gave assurances to Parliament at the beginning of this year that they would protect family reunion for unaccompanied children. The Government have since removed any mandatory requirement to facilitate family reunions, making it simply discretionary. Including the terms of Amendment 15 in the Bill will ensure that routes to safety through family reunion and relocation remain, which means that families can reunite and children can reach safety.
Between 2009 and 2014, before mandatory provisions were introduced by Dublin III, family reunions to the UK, for both children and adults, were carried out at an average rate of 11 people annually. Between 2016 and 2018, after mandatory provisions were introduced by Dublin III, family reunions to the UK were carried out at an average rate of just under 550 people annually, which strongly indicates that families remain separated without mandatory requirements on government to facilitate family reunions. As my noble friend Lord Dubs said, the figures also suggest that the numbers involved under a mandatory requirement are very small, certainly compared with the hundreds of thousands of people whom this Government, without any free movement requirement to do so, do not have any issues with freely allowing to come to this country each year from outside the EU.
As my noble friend Lady Lister of Burtersett said, research has shown that of the 12,000 unaccompanied children granted asylum by the UK over the past decade, some 10,000 came to the UK by dangerous routes on lorries and small boats, probably via people smugglers, because they could not access a legal route. That lack of access to a legal route is going to become absolute from the end of this year for the reasons set out by the noble Lord, Lord Kerr of Kinlochard, and the consequences, in respect of risks to their safety, for those seeking to join their families and for unaccompanied children, are simply going to get even worse. Action is needed now to address the situation that is imminent. If it is put to a vote, we will support Amendment 15.
The Deputy Speaker (Lord Bates) (Con)
I have received two requests to ask the Minister a short question from the noble Baroness, Lady Hamwee, and the noble Lord, Lord Kerr. I will call them in the order in which they were received, so, first, I call the noble Baroness, Lady Hamwee.
Baroness Hamwee (LD)
My Lords, the Minister said it would not be right to undermine negotiations with the EU by domestic legislation. Would it not be possible to include a provision in the Bill, such as that of the noble Lord, Lord Dubs—this would be our only opportunity to do so—but not to commence that provision if it is overtaken by the agreement with the EU?
Baroness Williams of Trafford (Con)
We do not want to pre-empt it with domestic legislation. I recall that, way back when, your Lordships’ House, and in fact Parliament, were pressing us to unilaterally agree the settlement scheme for EU nationals. We made it quite clear then that it was very important that both sides, if you like, played their part, but on this I do not think that domestic rules can ensure it. Therefore, the negotiated agreement is the optimum goal.
Baroness Hamwee (LD)
My Lords, my name is also to this amendment on behalf of these Benches, and I am glad to have the opportunity again to support our head terrier and add my yap to the debate.
Rights are significant, but they are of no use if you do not know you have them and do not appreciate that because nobody has told you about them. It is the state, of course, that should. Something less than citizenship is not the same as citizenship. An immigration status is not as good as citizenship for all sorts of reasons, some of which we rehearsed in Committee, and some of which have been mentioned today. I am glad so many noble Lords have talked to the position of the Roma people.
Those with rights should be encouraged to exercise them, not discouraged. It would be a reassurance to those waiting to see the hard evidence of the lessons learned from the Windrush inquiry if the Minister could report progress. Like the noble Lord, I was impressed by listening to Wendy Williams. I heard that event some months ago, when I had a little more energy to log on to online events. I was impressed by her observations about cultural issues.
I also agree with the committee, which stressed the importance of curiosity. It is necessary to stand in other people’s shoes to be able to respond properly to a problem.
However, given how much we have to get through today, I will not say more than this: what Parliament intended to put into law in 1981 should be observed. The report, as proposed by the noble Baroness, would be an important step towards this.
Lord Kennedy of Southwark (Lab Co-op) [V]
My Lords, I fully support my noble friend Lady Lister of Burtersett and others, and endorse her comments on the rights of children to register as British citizens and exercise their rights.
I find it shocking that the Government have not given way on the level of the fee and the particular problem of looked-after children. Frankly, it beggars belief that we have not made progress on this during consideration of the Bill. The fact that the previous and present Home Secretaries have raised concerns about the level of the fee should mean that we have some progress. The Home Secretary is the one person who can do something about this, but it appears she will not.
Like the noble Lord, Lord Russell of Liverpool, I am persuaded by the evidence and the contributions of many noble Lords in this debate. Let us be clear: these children are entitled to British citizenship. I always thought that British values were those of decency, fair play and justice, but I am afraid none of these is on display here today. What is on display is meanness, unfairness and a failure to act justly. It is an unjust position which has no place in modern Britain. As the noble Baroness, Lady Hamwee, said, having rights is no good if no one tells you that you have them and you are not encouraged to take them up.
Points were made previously about why the amendment could not be accepted, such as the technical point that this is only about EEA and Swiss nationals. Unfortunately, it is; that is because of the scope of the Bill. On the question of finances, how the Government need a fee to cover the costs of the process and ensure the effective running of the department in this area, they cannot have it both ways; for many years, like many other noble Lords, I have been arguing with the Ministry of Housing, Communities and Local Government that all we want is fees to cover the costs of planning. We were repeatedly told that we could not have it and that planning has to be subsidised by the council tax payer. I am afraid you just cannot have that. We do this either everywhere or nowhere at all. On settled status as opposed to citizenship, there is no question which is the better status. If you are entitled to citizenship, you should be able to get it.
The noble Lord, Lord Alton of Liverpool, set out the wholly reasonable nature of this amendment. It is asking only for the Home Secretary to lay before this House and the other place a report—nothing else, just a report—which must address the issues as set out in the amendment. I really do not understand why the Government are resisting this. As the noble Lord said, surely with the vulnerable position of these children, particularly looked-after and Roma children, no one could suggest that they are not disadvantaged people who need our help and consideration.
The Government’s reaction to this amendment is more than just disappointing; it is very worrying. We can discuss the hostile environment and Windrush, we can hear the apologies and the assurances they will not happen again, but having heard the Home Secretary’s speech yesterday, I for one fear that no lessons have been learned and that, instead, we are prepared to let these children be at risk. That is unacceptable.
I implore the noble Baroness, Lady Williams of Trafford, for whom I have huge respect—I have worked with her closely many times—at least to give a commitment to the House that she will go away and explain to the Home Secretary the strength of feeling across the House and hopefully, on this one issue, be able to come back on Third Reading having accepted what people are asking for.
Baroness Hamwee (LD)
My Lords, my name is to Amendment 25, and it should also have been to Amendment 17, but I think I sent the email before I had typed “and 17”. I declare an interest as a member of the board of the Rose Theatre, Kingston.
In Committee, the noble Lord, Lord Parkinson, said that
“we are determined to get this right and ensure that these talented people”—
he was referring especially to the creative industries—
“choose to work and base themselves in the UK.”—[Official Report, 9/9/20; col. 892.]
Amendment 17 is not about being based in the UK but coming to the UK and, necessarily, going from it, and about reciprocity, which the noble Lord, Lord Patel, just mentioned. That has to be the basis. Amendment 25 is about creativity, because research and innovation are inherently creative, as are the other industries mentioned, and are very often collaborative internationally. Again, the noble Lord, Lord Patel, mentioned the issue of vaccines, which is of course very topical. By no means are all those who are the subject of the amendment higher earners—or, in government terms, highly skilled—and that is sometimes because they are quite early on in their careers. In research areas, they are not all wild-haired individuals working alone, shouting “Eureka!”—I have to say I have no idea what Archimedes’s hairstyle was like. I should not have mixed those two up.
The arts and entertainment need a lot of technical support—the “others” mentioned in the amendment—and it is important that there are not administrative and financial hurdles in the way of all that. I understand that about two-thirds of the certificates of sponsorship for new visa applications for tier 5 are estimated to be for the arts, entertainment and recreational sectors, and noble Lords will understand the administrative impact of all that.
Such hurdles can quickly lead to a reduction in the pooling of experience and ideas. At the Rose Theatre, the board has for some years had wide-ranging discussions with representatives of other theatres, many of them from outside the UK. They have come over to talk to us and exchange experiences and ideas for the future—and very valuable that has all been. Of course, by no means at all is this the extent of my concern about the future of theatre and other parts of the creative industries.
I mentioned reciprocity and I have yet to hear anyone say that online meetings and conferences, as we are experiencing now, are a complete substitute for being face to face. They are very helpful in the current situation—but only so far. Short visits, particularly in the services sector, which is so important to the UK, are really important too. When I say “services sector”, I do not want to forget all the supporting activities that there are. Services have their supply chain just as much as manufacturing does. That is important in the world that I used to be in—the law—for finalising a deal or settling a conflict, and it is important that entry is easy and can happen speedily.
I am very glad that the noble Earl brought these amendments back to the House. He said that they would be to everyone’s advantage. We are all advantaged, both by the arts and by the sciences.
Baroness Shackleton of Belgravia (Con)
My Lords, I thank the noble Lord, Lord Oates, for tabling this amendment and give him my support. It is with a heavy heart that I do so, against my Government—my party.
I sat on the European Union Justice Sub-Committee with the noble Lord when we took hard evidence. We invited the ambassadors for all the EEC countries to come and talk to us and share their concerns, which were twofold. The first was that the applicants were made to feel unwelcome when they were asked to apply. They had to go through the Herculean task of proving something in circumstances where many of them had been super-contributors to our country—where we should have welcomed them with open arms. It looked as if we were doing them a favour in accepting them if they wanted to stay with us, not treating them as our equals. This was simply inhumane and there was no explanation for that.
Secondly, when they got to the very bottom of the task and were eventually accepted, they asked whether they could have some physical proof. They were denied it without any rational explanation whatever. I happened to chair the meeting to which we invited every single ambassador—it was in a large room, as we could convene in large rooms in those days. I asked them to share with us the single most upsetting feature of applying. To a man or woman, they responded that the lack of physical proof was the highest, the most frequent and the most troubling.
I not going to repeat the many speeches that have been made tonight because the night is getting long, but I want to add one other feature: cybersecurity. The reason I stand here tonight and am not being hooked up from home is because I am, as I have advised Black Rod, a victim of being hacked through my telephone. My parliamentary email, my own email, my WhatsApp messages, my pictures and my texts are all visible to somebody else. The future of crime is not only the nuclear problem; it is the cyber problem. With one swipe of a button, it affects the system. We have talked a lot about general accidents, not being able to connect and the mistakes that prevent us voting. We have law courts which sit virtually but crash in the middle of a hearing. But if we are under attack and somebody wants to cause serious grief to us as a country, this is what could be done in the absence of any back-up.
If this happens to the people who we are so lucky to have—I share the right reverend prelate the Bishop of Southwark’s view on this—we are simply not acting in a humane way. We are not treating our fellow citizens in the same way as we would like to be treated. The reciprocal arrangements in embassies across Europe are that British people are entitled to get proof there—they give it out free. We should take notice of that and reciprocate with similar willingness.
Finally, I want to close by saying this: it is never too late to right a wrong. I have enormous respect for my noble friend the Minister. I hope that she will listen to and take to heart the compliments paid to her personally. I hope that she will look into the abyss and feel that, tonight, we have done something useful to help the very many people who have written to ask for our support in what, for them, are extremely troubling circumstances.
Baroness Hamwee (LD)
My Lords, this debate would not be complete without thanking the very many individuals who have been in touch with noble Lords to express their strong views and very real concerns, nor would it be complete without thanking the 3million—although perhaps that organisation should be called “the almost 4 million”, as we now know. We have to thank every voluntary organisation, the many people affected and those making their views heard, as well as the few who work so hard on their behalf and have been so effective in passing those views on to us.
The Minister in Committee made a long, careful speech which, on rereading, did not seem to address the amendments but rather was a speech responding to what she expected to hear, not to the individual points that were made. The noble Baroness, Lady Bull, has again spoken about people in abusive and coercive relationships, as she did then, and about people with impaired capacity, but there was no answer about the latter. With regard to the former, the Minister said:
“We are committed to delivering a service that reflects the diverse needs of all users.”—[Official Report, 14/9/2020; col. 1094.]
How does that answer the point? Coercive control could cause—I was going to say “just”; it is not “just”, but noble Lords will understand what I mean—not just a difficulty in renting or a lack of getting the job that one wants; it could actually mean trapping the individual in that relationship.
I mentioned Australia at the last stage, as some noble Lords have done today, and the length of time it had taken to make everyone comfortable with purely digital arrangements. The Minister commented that, in Australia, the physical documents are issued in the form of biometric cards. Again, how did that answer the point? This amendment is not opposing the digital system; it is about having additional physical proof for those who ask for it.
From time to time, a proposition in this House takes off because there is something about it that feels very real; noble Lords support it intuitively—and sometimes rationalise that intuition after they have come to the view. The intuition tells them that they have got their fingers on the pulse of opinion. It also, in this case, resonates with our appreciation of citizens who have been a part of our community and who we want to see remaining as part of our community.
I congratulate the speakers who I know do not want to go against their own Front Bench but who are prepared to speak out—I do not suppose that they enjoy doing so. The debate has been impassioned and almost unanimous. I cannot offer the Minister a halo, but she will have an opportunity after the vote, which I expect to be overwhelming, to pass on noble Lords’ arguments and the strength of feeling. She can do that behind the scenes. She is so respected in this House, and I hope that knowing that will buoy her in the task in front of her, because we must achieve this change.
Baroness Hamwee
“Time limit on immigration detention for EEA and Swiss nationals
(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 (SI 2016/1052);(b) residing in the United Kingdom in accordance with a right conferred by or under any of the other instruments which is 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 (saving for rights etc. under section 2(1) of the ECA), to be recognised and available in domestic law after exit day.(2) The Secretary of State may not detain P under a relevant detention power for a period of more than 28 days from the relevant time.(3) If P remains detained under a relevant detention power at the expiry of the period of 28 days then—(a) the Secretary of State must release P forthwith; and(b) the Secretary of State may not re-detain P under a relevant detention power thereafter, unless the Secretary of State is satisfied that there has been a material change of circumstances since P’s release and that the criteria in section (Initial detention: criteria and duration) are met.(4) In this Act, “relevant detention power” means a power to detain under—(a) paragraph 16(2) of Schedule 2 to the Immigration Act 1971 (detention of persons liable to examination or removal);(b) paragraph 2(1), (2) or (3) of Schedule 3 to that Act (detention pending deportation);(c) section 62 of the Nationality, Immigration and Asylum Act 2002 (detention of persons liable to examination or removal); or(d) section 36(1) of the UK Borders Act 2007 (detention pending deportation).(5) In this Act, “relevant time” means the time at which P is first detained under a relevant detention power.(6) This section does not apply to a person in respect of whom the Secretary of State has certified that the decision to detain is or was taken in the interests of national security.”Member’s explanatory statement
This new Clause places a limit on the length of time EEA or Swiss nationals may be held in immigration detention of 28 days.
Baroness Hamwee (LD)
My Lords, Amendment 20 is in a package with Amendments 21, 22 and 31. I will be seeking to test the opinion of the House on Amendment 20, and I understand the Government accept that the other amendments would be treated as consequential. I have had to edit these remarks very heavily because of the time, and I apologise to all those who have made such good points to me that I will not be able to include them in what I suspect will be a somewhat disjointed speech.
The use of detention for immigration purposes, in part because of the Windrush scandal, is attracting increasing concern across civil society. These amendments address one particular aspect: that it is indefinite. The amendment would impose a time limit of 28 days; there could not be re-detention—cat and mouse—without a material change in circumstances; and there is an exclusion where detention is in the interests of national security.
Amendment 21 sets out the criteria for detention, including that the detainee can shortly be removed from the UK. Noble Lords will be aware that places of detention, apart from when a prisoner remains locked up after serving his sentence, are actually immigration removal centres. The detention must be proportionate and strictly necessary. Amendment 22 provides for bail hearings.
It is no answer to say that most detainees are released within 28 days. That does not make detention for a longer period defensible in the case of those who are held for longer, and for all detainees it is the uncertainty —not knowing when the end might come—that is the issue.
It may seem rather trivial, but we have all recently experienced being, and are currently, confined to our own homes. That is nothing in comparison: in our own homes, speaking the language of those around us and with means of communication. The noble Lord, Lord Dubs, in an earlier debate talked about having no hope—that no hope for the future feels like no future. That applies to detainees in this situation. The very great majority of detainees are not foreign national offenders. Dealing with them really is, or should be, something for the criminal justice system, including probation.
The impact of detention, and the prospect of re-detention, is an extraordinary burden. People are picked up from living in the community in what seems quite a random fashion, and people are taken straight from their regular and proper reporting into detention. It takes its toll on people who are, by definition, almost to some extent vulnerable; some are highly vulnerable and traumatised by their experiences.
The Minister in Committee said that a time limit would reward abuse. There must be many detainees who, not having sought to go underground and having conducted themselves as required—I have mentioned reporting—must feel that detention is a reward for compliance. They continue to show their compliance when they are released; they do not disappear.
The right to apply for bail, as currently, is not an adequate safeguard. Most detainees cannot advocate for themselves. The amendment provides for automatic hearings by the tribunal, which is experienced in immigration matters.
I was a member of the Joint Committee on Human Rights when it produced a report supporting the 28-day time limit. To answer another point made in Committee, the evidence that we had then was that the gatekeeping function, relatively recently introduced and intended to assess suitability for detention, was generally perfunctory and inadequate.
I must tell noble Lords that the majority of people detained—almost two-thirds according to the last figures—are ultimately released into the community. That prompts the question: if they are suitable to be released into the community eventually, why do they need to be detained for any longer than 28 days?
I know that noble Lords want to see a humane asylum system that they can defend and asylum claims dealt with in a reasonable time, and I do not accept the argument that delays are due to lawyers gaming the system. I hope that noble Lords, with that short explanation and with many of them no doubt having previously encountered descriptions and concerns about the issue, will wish to support these amendments. I beg to move.
Baroness Hamwee (LD)
My Lords, I apologise to the noble Lord, Lord Ramsbotham. I share his concerns about segregation; my heavily edited speech was almost illegible by the time I made it, so I crossed out one of the wrong bits.
I thank noble Lords who have supported these amendments and packed so much into what they have said. The noble Lord, Lord Kerr, packed in a lot of criticisms of the whole system, and I agree with every word he said. I hope I anticipated a number of the Minister’s arguments, because they were made in Committee—although I was probably pretty telegraphic in the way I did so.
The Minister said the amendment encourages compliance; the very fact that individuals are plucked out of the community, and do not disappear underground, shows that they comply. The amendment includes in its criteria that detention should be proportionate, which meets the point. It also meets the point about the need to protect public safety. Frankly, it is adding insult to injury—and it really is injury—to the majority of asylum seekers, who are not violent criminals. They are not criminals at all.
However, all this misses the point. It is about detention being indefinite. The Minister says that it is not indefinite; it always has an end and that is not the same as being indefinite. The individuals do not know when it must end. It is that uncertainty and loss of hope which are so inhumane and damaging. I beg to test the opinion of the House.
The Deputy Speaker (Baroness Garden of Frognal) (LD)
I apologise, but the noble Lord, Lord Green of Deddington, wished to have a word after the Minister. I ask him to be brief.
Baroness Hamwee
“Initial detention: criteria and duration
(1) The Secretary of State may not detain any person (“P”) to whom section (Time limit on immigration detention for EEA and Swiss nationals) applies under a relevant detention power, other than for the purposes of examination, unless the Secretary of State is satisfied that—(a) P can be shortly removed from the United Kingdom;(b) detention is strictly necessary to effect P’s deportation or removal from the United Kingdom; and(c) the detention of P is in all circumstances proportionate.(2) The Secretary of State may not detain P under a relevant detention power for a period of more than 96 hours from the relevant time, unless—(a) P has been refused bail at an initial bail hearing in accordance with subsection (5)(b) of section (Bail hearings); or(b) the Secretary of State has arranged a reference to the Tribunal for consideration of whether to grant immigration bail to P in accordance with subsection (2)(c) of section (Bail hearings) and that hearing has not yet taken place.(3) Nothing in subsection (2) authorises the Secretary of State to detain P under a relevant detention power if such detention would, apart from this section, be unlawful.(4) In this section, “Tribunal” means the First-Tier Tribunal.(5) In this section, “relevant detention power” has the meaning given in section (Time limit on immigration detention for EEA and Swiss nationals).”Member’s explanatory statement
This new Clause is linked to new Clause “Time limit on immigration detention for EEA and Swiss nationals” by specifying certain criteria that must be met during the initial detention and that the initial detention period should be no longer than 96 hours.
Immigration and Social Security Co-ordination (EU Withdrawal) Bill
Baroness Hamwee ExcerptsWednesday 30th September 2020
(4 years, 1 month ago)
Lords ChamberRead Full debate Immigration and Social Security Co-ordination (EU Withdrawal) Act 2020 View all Immigration and Social Security Co-ordination (EU Withdrawal) Act 2020 Debates Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: HL Bill 121-R-II Second marshalled list for Report - (30 Sep 2020)
Baroness Hamwee (LD)
My Lords, the noble Baroness, Lady Neville-Rolfe, says that enforcement of immigration laws and regulations has been very weak. I say yes and no to that. Much could be said about evidence of torture and the age of young asylum seekers and so on; I do not want to get into that, nor the issue of which communities produce, as it were, the largest number of people here without authorisation.
From these Benches, we have long made the point that information is lacking. Information is basic to enforcement and we need that first and foremost. We need to know who arrives and who leaves. As I have understood it for a long time, including from speeches made by former Home Secretaries, the largest number of people who are here without leave are overstayers.
I said “yes and no” to the proposition about the weakness of enforcement. We believe it is important to have clear rules that are enforced; both are important for public confidence, as has been said. My noble friend Lord Paddick’s explanation of a loophole he has identified and pursued with enormous determination is a clear example of why both rules and enforcement are important. But it is the rules themselves that need to command confidence first, and we say they need to be sensible, clear and compassionate.
What has been enforced with enthusiasm are activities like “go home” vans and getting people such as landlords and employers to do the enforcing. What is published with enthusiasm are rules that are pretty much impenetrable—sometimes to those faced with interpreting them and almost always to those directly affected. The Minister said in Committee that the Government were
“actively exploring legislative options to ensure … enforcement … can be tightened up.”—[Official Report, 7/9/20; col. 573.]
I thought it sounded ominous, but I am sure she will take the opportunity today to explain what the Government are proposing. I hope she can be clear now, and whenever those options may come before us, about the facts, without going straight to assumptions about who is here without authorisation.
The Deputy Speaker (Lord Faulkner of Worcester) (Lab)
The noble Lord, Lord Young of Norwood Green, has withdrawn, so I call the noble Baroness, Lady Hamwee.
Baroness Hamwee (LD)
My Lords, the noble Lord, Lord Judd, has clearly passed on to his grandson the importance of contributing to service in its widest sense. I very much agree with his analysis but then I almost always do.
By definition, members of the largest cohort in the social care sector do not fall within paragraph 1 of Schedule 1 but are very much affected. They are certainly part of the social care workforce and are impacted by the availability of social care workers employed in the sector. I mean, of course, the many people who support and care for someone older, disabled or seriously ill at home. According to Carers UK, one in eight adults—6.5 million people—are so engaged. The carer’s allowance is around £67 a week. I could go on but I do not get the impression that noble Lords need to be convinced of the importance of the sector, including those who do not have formal, paid-for care at home or in a care home. The informal carers and those for whom they care are impacted as well as those in public or private employment. The number of those in private employment is considerable. The noble Baroness, Lady Masham, referred to the NHS.
That is not the only reason we support the amendment. The noble Baroness, Lady Finlay, in Committee, reminded us that there are 115,000 European nationals in the social care workforce, despite high vacancy rates. It is, as other noble Lords, have said, a skilled profession with some skills that cannot be trained into a person and come from one’s personality and often culture, and include physical fitness, as we were reminded by the noble Baroness, Lady McIntosh. At a previous stage of the Bill, the noble Lord, Lord Lilley, said that he would have supported similar amendments but for the absence of a reference to training, which is now included in the amendment—rightly so—because training in practical and technical matters is important. However, that does not detract from my observations about personality.
The need for carers will not diminish. My noble friend Lady Barker reminded us, although I do not need reminding, that many of us are ageing and do not have children to shoulder the work—and it is work —done by families, however lovingly. She gave us the figure of 1 million but one should add families with a disabled child, for instance.
Like my noble friend Lady Smith, I have a lot of sympathy with Amendment 30 and many of my comments apply to it. In Committee, the Minister relied on the MAC having licence to consider any aspect of migration policy. However, when prompted by yesterday’s report, I looked at the website—it may have been changed now—which referred only to commissions by the Home Secretary. However, the committee’s pursuit of the matter is welcome. The noble Lord, Lord Horam, will note that in quoting the chair’s reference to the
“struggle to recruit the necessary staff if wages do not increase as a matter of urgency”,
I am relying on a press release, not the 600 pages of the report.
As regards the amendment of the noble Lord, Lord Rosser, it is right that the assessment should be commissioned by the Home Secretary, because she should own the work. We are not “incurious”, as the right reverend Prelate said, and will support the amendment.
Baroness Williams of Trafford (Con)
My Lords, I thank all noble Lords who have spoken in one of the most thoughtful debates on the Bill. I want to reflect first on the point made by the noble Baroness, Lady Smith of Newnham, who said that had it not been for the pandemic, we might not be having this debate. I honestly think that we would have been doing so in some form or other. I am not taking issue with what she said but I want to make a further point.
Baroness Hamwee (LD)
Member’s explanatory statement
This amendment would restrict the Secretary of State’s discretion and preclude the making of unnecessary regulations.
Baroness Hamwee (LD)
My Lords, I moved Amendments 4 and 5 in Committee; they are amendments to what the Public Law Project called the “breathtakingly wide” powers proposed to be given to the Secretary of State. It is ironic that when elsewhere negotiations are going on—or maybe not going on—regarding the sovereignty of the UK Parliament, we are being faced with exercising our sovereignty in order to pass it back to the Executive.
Amendment 4 would substitute in Clause 4, which is about regulation-making powers, the word “necessary” for “appropriate”. Amendment 5 would take out the ability for the Secretary of State to make regulations “in connection with” anything in Part 1. Taken together, these terms give the Executive huge latitude. I am glad that the names of the noble Lords, Lord Rosser, Lord Pannick and Lord Alton, have been added to my amendments. The clause would read, “such provision as the Secretary of State considers necessary in consequence of any provision” of Part 1.
The amendments follow the report of the Delegated Powers and Regulatory Reform Committee, a member of which, the noble Baroness, Lady Meacher, made a very balanced speech at the last stage of the Bill. She acknowledged, as I do, that consequential amendments through means of secondary legislation are generally needed—although, as she said, when they can be they are to be put in the Bill, with regulations then used for tidying up. But as the breadth and number of amendments in Committee showed—that is, amendments to the Bill —a huge number of topics can fairly be said to be connected with Part 1. Those topics were all approved by the clerks to the House as being within scope of the Bill.
The noble Lord, Lord Blencathra, chair of the DPRR Committee, said that he spoke in sorrow, rather than being vicious, about its reported criticisms or concerns about the clause. I think we are entitled to expect more of the Government—and this is not vicious, but many degrees up from sorrowful—than the defence that:
“There are clear constraints on the use of the power in Clause 4. It can be used only to make regulations that amend primary or secondary legislation ‘in consequence of, or in connection with’ Part 1”.
That is exactly what we object to. I had forgotten to comment on the offensive—and I say that deliberately—power to amend primary legislation through regulations. The Government’s reply to the committee’s report included the Minister again asking your Lordships to consider the illustrative draft of the regulations which, shortly before the last stage, had been circulated, and to
“take comfort that this power is specifically to deliver the end of free movement”.—[Official Report, 7/9/20; col. 641.]
That is also relied on in the long letter from the Home Office, which I received at lunchtime today—and I dare say that the timing was similar for other noble Lords. I have to confess that I have not been able to get my head around quite all of it.
The draft regulations referred to are, frankly, fiendishly complicated, and are causing a lot of anxiety both as to the extent they are understood—especially as to any omissions—and to the extent they are not understood. But whatever they are like, we have nothing that we can look to as an assurance that there will not be more regulations. The “lawyers”, I am told, are engaged in an exhaustive process of analysing this draft. It may bore others as much as it does me to say it, but whatever the intentions of this Government and this Minister today, that would not matter one jot tomorrow in terms of curbing the power in Clause 4. I beg to move.
Lord Pannick (CB) [V]
My Lords, I agree, as I usually do, with the noble Baroness, Lady Hamwee. She mentioned the report of the Delegated Powers and Regulatory Reform Committee. There was also a report on this subject by your Lordships’ Constitution Committee, of which I am a member. We issued a report on 2 September, our 11th report of the session. At paragraph 22, we said:
“We agree with the conclusions of the Delegated Powers and Regulatory Reform Committee about the powers in clause 4. A Henry VIII clause that is subject to such a permissive test as ‘appropriateness’, and which may be used to do anything ‘in connection with’ in relation to so broad and important an issue as free movement, is constitutionally unacceptable. Such vague and subjective language undermine fundamental elements of the rule of law.”
That is the view of your Lordships’ Constitution Committee, in a unanimous report from Members from around the House. I am very disappointed that the Government have been so far unwilling to engage with that advice—and certainly to accept it.
The Delegated Powers and Regulatory Reform Committee noted, in paragraphs 18 to 19 of its excellent report, the exceptional breadth of Clause 4(1). What it does is empower the Secretary of State not merely to make regulations “in consequence of” this legislation but “in connection with” this legislation. As the committee explained, that would confer on Ministers the power to make whatever regulations they think appropriate, provided they have some connection with the legislation, “however tenuous”. Given the exceptional breadth of the delegated powers in Clause 4, I also support Amendment 9 in the name of the noble Lord, Lord Rosser, which would impose a sunset clause on these powers.
I have one further point. This Bill is far from unique in seeking to confer excessively broad powers on Ministers. The Constitution Committee has repeatedly drawn attention to the need for effective limits on delegated legislation, to ensure ministerial accountability to Parliament. I am pleased that Members of the House of Commons, in the last few days, have begun to recognise the dangers of such legislation, not least because, when regulations are brought forward, they are unamendable. Your Lordships’ Constitution Committee has regularly made this point in reports over the last few years. The unacceptable breadth of provisions such as Clause 4 in the Bill is, I regret to say, typical of a Government who, too often, see Parliament as an inconvenience rather than the constitutional authority to which the Government are accountable.
Baroness Hamwee (LD)
My Lords, I thought I would leave the Constitution Committee to the noble Lord, Lord Pannick, and he did not disappoint—he never does. Words such as Parliament being “an inconvenience” and “the fiction” of Parliament’s involvement have been referred to. I am sorry that the noble Baroness, Lady Meacher, was not here to hear my compliments to her on her very measured speech as a member of the DPRRC at the previous stage, but it was measured, and the more powerful for that.
I do not resile from the comments that I have made about the single words which somebody said we get excited about. I do get excited about single words—they are very important. Like other noble Lords, I feel that Parliament is being sidelined.
The lawyers who have been engaged on the draft SIs that have been published must be absolutely exhausted. I think that they would probably be the most enthusiastic supporters of Amendment 9, but perhaps I am too sympathetic as a long-retired lawyer. I wonder whether there might be a need for further tidying up but I do not want to make the Government’s case for them.
The Minister said that the debate has been assisted by the DPRRC and its chair. It has been assisted but it has not led to any change. In the reply that we have had today, she has used similar language—that the inclusion of “in connection with” provides a clearer basis for dealing with issues and that the words are more apt to describe the cohorts referred to. However, for me, that raises more problems, because it distinguishes between those who have exercised the opportunities to apply for settled status and those who would rely on treaty rights to which they are not entitled. I am becoming quite technical here but that takes us to the issue of comprehensive sickness insurance, which I hope we will get to on Monday.
I have said it before and will say it again today—I hope, for the last time—that of course we do not expect to see another illustrative draft instrument, but there would be nothing to prevent the Minister bringing forward further statutory instruments in the next few months. It is the words in the clause rather than any limited time in which the clause might apply that are the most relevant.
Now that I have said all that, I shall not say it all again and I do not propose to ask the House to consider it. I therefore beg leave to withdraw the amendment.
Lord Judd (Lab) [V]
My Lords, I thank my noble friend for having introduced this amendment, for the considerate way in which he did it, and for the questions which he posed to the Minister, to which I hope she will reply.
It would be difficult to overestimate the degree of concern that exists among voluntary and civil society organisations which are looking after children and seeing to their protection. I know that across the House, irrespective of party, there is a real concern that we should always be seen in the world as a country which gives genuine priority concern to children.
Among those organisations is of course Amnesty, and it is worth seeing what it has to say on this. Many of these children may do themselves harm; many of them will be British citizens or entitled to register as such. It is vital to their interests that they are encouraged to act on these rights of British citizenship and that local authorities are encouraged and supported to assist children in doing so. If that is not done, these children may lose their rights to British citizenship, either because for some the right is lost on their reaching adulthood since delay may mean evidence becomes increasingly inaccessible to establish, or because an encounter with the criminal justice system may bar their exercise of the right on the basis that they are regarded as not of good character.
Amendments 10, 13 and indeed 18 are concerned with ensuring that EU citizens are not left without settled status. These are important concerns, because being without status or confirmation of it exposes someone to immigration powers and exclusions. These immigration powers include the ability to detain and remove a person from the United Kingdom, and those immigration exclusions include the ability to prohibit a person from such things as working, renting accommodation, holding a bank account, accessing free healthcare and applying for social welfare. There are a number of telling concerns around this area of the Bill, and I thank my noble friend for having introduced the amendment.
Baroness Hamwee (LD)
My Lords, late applications are indeed very important, and guidance will be essential. There is a lot of concern about what may lie behind an EU citizen not having applied for settled status, not with the intention of somehow evading the authorities or doing anything sinister or underhand. For instance, as we have said before, people may believe that an application is not necessary because they have a permanent residence document. Many reasons are cited, and no doubt there are many which none of us has thought of. After all, that is the human condition.
There are people whom the Home Office information has failed to reach or who have not understood it. I am aware that the Home Office plans to step up its communications after the end of the year to try to reach those who have not applied. However, it is worth mentioning again that, when the UK switched to digital television, there was an enormous campaign which was generally accepted as successful, but even that success left 3% of households not switching and finding overnight that their televisions did not work, and that was a much more straightforward subject than this is.
The point made within the amendment, and by the noble Lord, about status in the interim period is hugely important, and I hope to come back to that later in this Bill. They have got to be secure in the interim; it would be an enormous breach of faith if that was not the case. In Committee, the Minister sought to reassure noble Lords that there is plenty of time to apply under the EU settled status scheme, but that is not the point; it is what the Government’s “compassionate and flexible approach” will amount to in practice in their pragmatic take on this.
I confess that I had hoped to get an amendment down on comprehensive sickness insurance—essentially, what the position is on the grace period—in time for today, but it defeated me. I refused to be completely defeated and, with a little more energy, got back to it and it has been tabled, but too late for today, so we will have an opportunity on Monday.
We have the Government’s SI in draft in what I understand to be close to its final form, but those who know this subject inside out—and I do not—are still poring over it. That includes the3million, which is doing the most impressive job on all of this subject, both at a technical and at a human level. It is entirely appropriate to seek an assurance that the draft regulations provide the protection that we, and the noble Lord, Lord Rosser, would expect to see during the grace period.
The noble Lord, Lord Judd, was right to remind us of the particular position of children who have not been able to exercise treaty rights, if I understand the position properly. The guidance needs to be as extensive as is appropriate or, to hark back, as is necessary. I say that because on a different matter, on 9 September, the noble Lord, Lord Parkinson, from the Dispatch Box, said that an amendment which I was speaking to was not necessary, and referred the Committee to the draft illustrative regulations proposed under Clause 4(1), which, as he said, do not include any provisions relating to the subject matter I was discussing. They do not. But reading that afterwards—and I do not think the noble Lord meant it as cynically as I then read it—it was tantamount to saying, “It is not necessary because we are not doing it.” I did read the passage through two or three times.
I have my concerns, as I have said, about the whole of Clause 4, but I am not sure it is appropriate to hold back on all the regulations until this temporary protection is sorted out. But then, frankly, I am not here to help the Government sort out that type of thing. I am glad the noble Lord has tabled this amendment, spoken to it and drawn the potentially precarious position of a number of people—possibly quite a lot of people—to our attention, and I support him.
Baroness Williams of Trafford (Con)
My Lords, I thank the noble Lord, Lord Rosser, for his amendments. I hope that what I will say will reassure him and that he will feel happy to withdraw them. Both amendments seek to prevent the Government from making regulations under Clause 4 until we have published guidance on late applications made under the EU settlement scheme, the grace period statutory instrument and guidance on its operation.
I turn first to Amendment 10, which concerns the publication of guidance on how the Government will treat late applications to the EU settlement scheme. The Government have made clear their commitment to accepting applications after 30 June 2021, where there are reasonable grounds for missing this deadline. This is in line with the withdrawal agreements, which now have direct effect in UK law via the European Union (Withdrawal Agreement) Act 2020, so this commitment is effectively enshrined in primary legislation.
As I mentioned during Second Reading and more recently in Committee, the Government intend to publish guidance on reasonable grounds for missing the deadline in early 2021. This will be well in advance of the deadline. For now, our priority must be to encourage those eligible to make their application before the deadline. This will ensure that they can continue to live their lives here, as they do now, with the certainty that status granted under the scheme will provide them. We do not want to undermine those efforts and risk inadvertently causing people to delay making their application.
The noble Lord, Lord Judd—humanitarian that he is—supported by the noble Baroness, Lady Hamwee, talked about vulnerable people, particularly children. The Government are doing all that they can, using all available channels, to raise awareness of the scheme and ensure that vulnerable groups are helped to apply.
The published guidance, when it comes at the beginning of next year, will be indicative, not exhaustive. All cases will be considered in the light of their individual circumstances. Apart from asking for the reason for missing the deadline, the application process will be the same; we will consider the application in exactly the same way as we do now, in line with the immigration rules for the EU settlement scheme.
A person with reasonable grounds for missing the deadline, who subsequently applies for and obtains status under the scheme, will enjoy the same rights from the time they are granted status as someone who applied to the scheme before the deadline. However, they will not have those rights in the period after the missed deadline and before they are granted status, which is why we are encouraging and supporting people to apply as soon as possible. It is very pleasing that over 3.9 million people have done so.
In addition, it is important to remember that the regulations under the Clause 4 power include provisions relating to the rights of those with status granted under the EU settlement scheme. To delay those provisions, as envisaged by this amendment, would therefore be counterproductive in our collective effort to protect the rights of those resident in the UK by the end of the transition period, as well as Irish citizens.
Amendment 13 would require the Government to publish the draft statutory instrument that will temporarily protect the rights of EEA citizens who are eligible to apply to the EU settlement scheme but have not done so by the end of the transition period, together with accompanying guidance. That instrument, as noble Lords know, is the Citizens’ Rights (Application Deadline and Temporary Protection) (EU Exit) Regulations 2020, which I will refer to as the grace period SI. An illustrative draft was shared with this House before Committee. Since then, on 21 September, the Government have formally laid the SI in Parliament.
The purpose of the grace period SI is to set the deadline for applications to the EU settlement scheme as 30 June 2021 and to protect the existing rights of resident EEA citizens and their family members during the grace period. It will save relevant legislation otherwise repealed by Clause 1 of and Schedule 1 to this Bill at the end of the transition period. This will mean that EEA citizens can continue to live and work in the UK as now throughout the grace period and pending the resolution of their application to the EU settlement scheme, providing they apply by 30 June 2021.
I reassure noble Lords that EEA citizens’ rights to live and work in the UK will not change during the grace period, nor does the grace period SI change the eligibility criteria for the EU settlement scheme. Therefore, there is no change to the Government’s policy that comprehensive sickness insurance is not required to obtain status under the EU settlement scheme.
Noble Lords asked me about the scope of the regulations. People need to exercise free movement rights to benefit from the savings in the grace period SI. We are not inventing rights of residence to save them, because that is not what the withdrawal agreement says. The statutory instrument will be subject to debate and approval by Parliament and will need to come into force at the end of the transition period. Where relevant, Home Office guidance will be updated to reflect the statutory instrument before the grace period commences.
I hope that I have explained that clearly and that, therefore, the noble Lord will feel happy to withdraw his amendment.
Baroness Hamwee
“(5A) Regulations made under subsection (1) must make provision to enable UK citizens falling within the personal scope of—(a) the Withdrawal Agreement,(b) the EEA EFTA separation agreement, or(c) the Swiss citizens’ rights agreement,to return to the United Kingdom accompanied by, or to be joined in the United Kingdom by, close family members.(5B) Regulations under subsection (1) may not impose any conditions on the entry or residence of close family members of UK citizens which could not have been imposed under EU law relating to free movement, as on the day on which this Act comes into force.(5C) For the purposes of subsection (5A)—“close family members” means—(a) children (including adopted children), and(b) other close family members where that relation subsisted on or before 31 January 2020 and has continued to subsist; “Withdrawal Agreement”, “EEA EFTA separation agreement” and “Swiss citizens’ rights agreement” have the meaning given in section 39 of the European Union (Withdrawal Agreement) Act 2020 (interpretation).”
Baroness Hamwee (LD)
My Lords, at the previous stage of the Bill and very late in the debate on this amendment, which was then in the name of the noble Lord, Lord Flight—I am glad that he is able to be here this evening—having listened to the Minister I asked what she would advise a couple living in the EU, one British and one an EU national, if they both have elderly parents, on one side of the family in the UK and on the other in that EU country. They would be—they are—faced with not just the end of free movement but an impossible choice: not just where they should live after March 2022 but which parents they should decide to care for personally. They will have to make that decision within the next 18 months—15 months after the end of the transition. The Minister had an impossible task in responding to my question as to whether picking between parents was a humane response. She argued that people will have had plenty of time, but does that really address the point?
Since Committee, I have had so many emails, as no doubt have other noble Lords, making it clear how many different family situations there are, but all presenting families with similarly impossible choices. I thank everyone who has written to me and to other noble Lords. They have taken such care to contact us, not with standard formulaic emails but with powerful descriptions of their situations, their concern and their distress. Noble Lords will understand that I want to read some of them into the record, and that I cannot read them all. As examples, however, there is a lady of 75 living in the Netherlands supporting a Dutch companion, and vice versa, whose mother is 96 and in a care home there. There is a lady of 79 in the UK who expected to receive support and part-time care from her daughter, who would be prepared to give it provided that her French husband is able to move to Britain. A couple in France with a 12 year-old son are faced with whether to uproot him from school. There is a family in Italy, one parent British and one Italian, with two teenagers of dual nationality—one of whom has just started at university in the UK, while the other may want to make her life here; the parents may want one day to follow their daughters. And so it went on.
We are a global society. Families come in all shapes and sizes, and in all places. Many people make the point that their residence outside the UK makes them feel no less British and that they are surprised to find themselves writing as they do. Many say that the prospect of separation from family is unbearable. All say that when they moved abroad, they had no idea that there could be restrictions or conditions on returning as a family.
The amendment provides that the regulations
“must make provision to enable UK citizens falling within the personal scope of”
the agreements referred to
“to return to the United Kingdom accompanied by, or to be joined in the United Kingdom by, close family members”
without
“conditions on the entry or residence of close family members … which could not have been imposed under EU law relating to free movement … on the day on which this Act comes into force.”
I have been asked about a detail of the amendment: the reference to “close family members”. As it happens, in a Select Committee yesterday the Immigration Minister used exactly that phrase in discussing family reunion. I suppose the technical answer is that these provisions would be implemented by regulations which would be precise, but by anyone’s definition partners and parents “where that relation subsisted”, which in the case of parents it obviously would, at the end of the year and continues to do so would fall within it, as well as children.
The Minister explained in the context of various amendments in Committee that the Government were seeking to be not discriminatory but to end discrimination between, on the one hand, EEA/Swiss citizens and, on the other hand, other citizens. But the Government’s proposals for ending the current arrangements in March 2022 would discriminate between those families of mixed nationality who happened to have settled in the UK and those who settled elsewhere in the EU. They would require Britons who wish to return to meet conditions for sponsoring a spouse and children.
The financial requirements—the minimum income requirements—are not easy nor by any means available to everyone. Some 40% of UK workers could not reach the minimum income requirement, and the non-British partner’s income can be taken into account only after six months, assuming he or she can get here in the first place. If you want to bring elderly parents, they have to be so much in need of care that, according to evidence given to a working party that I chaired some years ago, they would probably be unfit to travel. If you yourself are older and no longer earning, can you reach the income threshold? This would be discrimination against our own citizens, imposed retrospectively on citizens who had no expectation that this choice might lie ahead.
Lifting the end date would not mean unlimited numbers of people coming here with their families. As I have explained, we are talking about people who fall within the agreement, their families and children, and others with whom the relationship subsisted before January 2020. I asked rhetorically in Committee if this was really humane. I ask now whether it is the right approach—to ask that, I think, would also be rhetorical. Since Committee, I have begun to realise just how inhumane it is, so I give notice now—I suppose it is notice for Monday—that, barring assurances which I cannot say I anticipate, though they would be very welcome, I will press the matter to a vote in accordance with current procedure. For the purposes of the debate this evening, I beg to move.
The Earl of Clancarty (CB)
My Lords, I have added my name to Amendment 11 in the name of the noble Baroness, Lady Hamwee. When I spoke to it in Committee, I genuinely thought that this was something the Government had overlooked. I discover that this is not the case and that there is some history behind the Government’s position. The reason perhaps for my naivety is that the argument as I saw it, and as I still see it, is very simple: it would be wrong to put a deadline on British citizens returning to the UK with their families. It would be deeply unfair to do so, and I am glad that the noble Baroness intends to press this to a vote if the Government do not accept the amendment.
The Minister cited in Committee the case that the Conservative Government of the day brought against Surinder Singh in 1992, and said at the beginning of her reply that the amendment
“refers to a specific cohort of people relating to what is known as the Surinder Singh route for family immigration.”—[Official Report, 9/9/20; col. 827.]
I fear that this statement betrays an element of cynicism in government thinking about this issue—for which I of course do not blame the noble Baroness. However, this is an inappropriate analogy, in the sense that the Government have clearly not accepted the decision made in Surinder Singh’s favour. It is an inappropriate analogy for a couple of other reasons. One is that there is a universal cut-off point that applies both to British and European families, which is of course the end of this year. We will not then be part of the EU and there will be a limit on the number of families, European and British, who might then come to this country from Europe.
The second thing to say is that we are talking about many British citizens who have been married for many years, often to other European partners—though it should not matter where in the world their partners have come from—and often they are building families with strong and complex roots in the UK and the rest of Europe. They have done so believing at the time that they had a settled life in Europe, wherever that may be in Europe; that was their bone fide position. Yes, people get divorced—and indeed married—for all kinds of reasons; that is life. But this Government are applying the Government of 1992’s perception of that case to generalise about all British families living in Europe. British citizens and their families in Europe are not that cohort, as this Government perceive it, and it is insulting to all British families currently living in Europe that they should draw that analogy.
Baroness Hamwee (LD)
My Lords, I agree with the noble Baroness on one thing: I am not going to withdraw my amendment. I thank all the speakers, all those who have written to us and the organisation British in Europe, which has helped us understand the position and made sure that so many British people in Europe understand it.
It was notable to me that the speakers all used different examples. I think all of us have had the experience of being briefed and finding that one’s briefing is anticipated by several previous speakers—not so today. Our correspondents have written a variety of speeches for us. What I had not known until this evening was the position of veterans who served in the Armed Forces abroad, and who—this is very powerful—are making their views known. I am grateful to the noble Earl for raising that.
The Minister said we were asking to for ever bypass immigration laws. That is a very loaded way of putting it. She talked about simple fairness; well, simple fairness demands not changing the rules affecting our fellow citizens, who could never have anticipated the situation, nor anticipated that their own spouse would be regarded as an unacceptable burden on the state.
We should not be callous, to adopt one term that is being used, about the legitimate expectations of our fellow citizens. Let us not be callous, and, as the noble Lord, Lord Flight, said, let us be civilised. So, I do not beg leave to withdraw the amendment, and I will put it to the House when we are able to have a Division on the matter.
The Deputy Speaker (Lord McNicol of West Kilbride) (Lab)
I will now put the question on Amendment 11. Notice has been given of the intention to press this amendment to a Division. I will need to collect the voices, but if there is a dissenting voice, the Division will have to be deferred.
Baroness Hamwee (LD)
“( ) The power to make regulations under subsection (1) does not include power to make provision inconsistent with the withdrawal agreement as defined by section 39 of the European Union (Withdrawal Agreement) Act 2020 (interpretation).”Member’s explanatory statement
This amendment would ensure that the power created in subsection (1) can only be used in ways that are consistent with the UK’s obligations under the EU Withdrawal Agreement.
Baroness Hamwee (LD)
My Lords, this is an amendment I moved in Committee. I said then that there was nothing subversive about it, no cunning plan; it simply seeks to ensure consistency with the withdrawal agreement in the light of the power in Clause 4 to make regulations which may modify primary legislation.
When the amendment was originally drafted, the issue was not so topical as it has subsequently become—in another context, of course—and it is still topical. But I do not need to go there. The objection is to Clause 4. The withdrawal agreement is an international treaty; we should be entitled to rely on it and not have the risk of the Government resiling in any way from it through any means, and certainly not through inherently low-profile secondary legislation, which is, in effect, unamendable and unstoppable.
Immigration law is fiendishly complicated and quite often changed through rules. I am not accusing Ministers of attempting to slip something through, but mistakes can happen. We should stick with where we believe we are on the withdrawal agreement. I beg to move.
The Deputy Speaker (Lord McNicol of West Kilbride) (Lab)
I call the noble Lord, Lord Flight, who will be followed by the noble Lord, Lord Rosser.
Lord Parkinson of Whitley Bay (Con)
I thank the noble Baroness, Lady Hamwee, for speaking to Amendment 12, which as she said was previously tabled in Committee, and my noble friend Lord Flight and the noble Lord, Lord Rosser, for speaking in this short debate on it.
Amendment 12 seeks to prevent the Government using the power in Clause 4 to make regulations which are inconsistent with the EU withdrawal agreement. The Government have placed a very high priority on ensuring the protection of the rights of EU citizens who have made the United Kingdom their home. Our commitment is, I hope, evident in the effort and resources that we have already devoted to the EU settlement scheme. I am happy to restate that the Government have absolutely no intention of acting incompatibly with the citizens’ rights provisions of the withdrawal agreements.
As has been explained, we already have a legal obligation to comply with those agreements, which also have direct effect in domestic law in accordance with the European Union (Withdrawal Agreement) Act 2020. If further reassurances were needed—and it sounded as if noble Lords wanted some—a formal independent monitoring body is being set up by the Ministry of Justice under Article 159 of the EU withdrawal agreement to ensure compliance by the UK with Part Two of the withdrawal agreement concerning citizens’ rights.
The Independent Monitoring Authority has been established under Section 15 of the European Union (Withdrawal Agreement) Act 2020. It will be a new, independent body which is fully capable of monitoring our domestic implementation and application of the citizens’ rights aspects of the agreements. It can launch inquiries, receive complaints and bring legal action to identify any breaches in how the agreements are being implemented or applied in the UK.
For these reasons, we continue to think that this amendment is unnecessary. Moreover, adopting it would call into question why this restriction has not been included in every other item of legislation across the statute book. For these reasons, I hope the noble Baroness will feel able to withdraw her amendment.
Baroness Hamwee (LD)
My Lords, it is fairly recently that some of us have felt it necessary to require assurances that legislation that a particular Government make will not be changed and broken—even in a specific and limited way. One understands that successive Governments may do so. It seemed necessary to make the point again because we are in such a strange situation. I was not sure about the powers of the Independent Monitoring Authority; I was under the impression—this is my failure to do my homework properly—that it would not have the power to take legal proceedings in a way which met this point. I am interested to know that.
I am clearly not going to pursue this. I want to take what is said at face value and I hope that the noble Lord’s successors do not prove me too naive in doing so. I beg leave to withdraw the amendment.
Lord Judd (Lab) [V]
My Lords, it is always a particular pleasure for me to support anything put forward in this context by my noble—and very good personal—friend Lord Dubs. As I have asked on other amendments, do we or do we not see the well-being of children as one of our high responsibilities in any future society that we want to become? How can it be in the interests of stability and security to have children who are semi-alienated by the situation in which they find themselves? That spells trouble for the future.
However, it is not just about our security. It is about wanting to ensure that children who have been through God knows what—it is very difficult to imagine the traumas that they must have had—are given the certainty that they need, with the backing of local authorities. This is not just a technical matter. In requiring local authorities to play their part in this, we will be building up a culture in which the nation shares in this commitment to children.
Baroness Hamwee (LD)
My Lords, yesterday the EU Security and Justice Sub-Committee was discussing refugees and unaccompanied asylum-seeking children with the Immigration Minister. He said, and I made a particular point of noting it—the Minister here does not need to look worried—“We always listen very carefully to Lord Dubs.” Well, that will be important for the next amendment, but I will apply it to this one as well, and I am very pleased to have added my name to the amendment on behalf of these Benches.
My noble friend Lord Bruce of Bennachie said at the last stage:
“We all know that children in care are especially disadvantaged, almost by definition”.—[Official Report, 16/9/20; col. 1292.]
I much prefer that term to “vulnerable” because many of them are extraordinarily resilient. But, however resilient you are, if you do not neatly fit a Home Office category, you are likely heading for problems and any parent, including a corporate parent, should do their best to pre-empt that.
In Committee the Minister explained the support services, I think she called them, for looked-after children and care leavers to assist them to make applications. That is of course welcome, but it would take someone much more confident than I am to be certain that no one will slip through the cracks.
In view of the time and in particular of the very thorough analysis of the amendment, especially by the noble Lord, Lord Kerr, I do not think I should take more of the House’s time, other than to encourage noble Lords to support the amendment—unless of course we hear from the Minister that the point is going to be taken up.
Lord Kennedy of Southwark (Lab Co-op)
My Lords, I fully support Amendment 14, moved by my noble friend Lord Dubs, which would add a new clause to the Bill. This clause was debated in Committee. I was persuaded by my noble friend’s argument then, and I am very much of the opinion that he is right on this issue and deserves the full support of the House when we vote on this issue next Monday, if the Government are not prepared to give way.
The clause would provide for children who are EEA or Swiss nationals and in care, along with those entitled to care leavers’ support, to be granted automatic indefinite leave to remain under the EU settlement scheme. The amendment, as we have seen tonight and as we saw in our debates a few weeks ago, has cross-party support. I am sure the Government have seen that support, and it would be good if the Minister could tell us what discussions took place at the Home Office between Committee and Report. I would be interested to know that; I hope this has not just been rejected out of hand.
My noble friend Lord Dubs said that the amendment would ensure that none of the children became undocumented. Identification is a serious problem for individuals, as my noble friend has outlined. There is also the whole issue that my noble friend talked about of local authorities all having different practices.
The amendment would speed up the process and enable social workers—who generally do a fantastic job, and we all know how much pressure they are under —to go straight to the Home Office and not have to deal with consulates and embassies, getting documents from abroad and the general bureaucracy of dealing with another country. It would avoid all that paperwork. My noble friend also set out the real problems that these children could suffer if the amendment is not agreed.
I agree with the remarks of the noble Earl, Lord Dundee. This really is a sensible amendment that deserves a positive response from the Government. I also agree with the remarks of the noble Lord, Lord Kerr, and the noble Baroness, Lady Meacher.
This is the decent thing to do for these children. We are talking about a relatively small number of children, but the amendment would ensure that no one fell into the trap of becoming undocumented. As the noble Lord, Lord Bruce, mentioned in the previous debate, children in care face all sorts of additional challenges. They are not with their parents. In effect, the local authority is the parent looking after them. All this amendment seeks to do is ensure that they do not have further issues to deal with, either as a young person leaving care or in many years’ time when being undocumented may pose a problem and leave them unable to establish their identity properly. The Government should give way on this small measure.
The Deputy Speaker (Lord Alderdice) (LD)
I have received requests to ask short questions from the noble Baroness, Lady Hamwee, and the noble Lord, Lord Kennedy of Southwark. I call the noble Baroness, Lady Hamwee.
Baroness Hamwee (LD)
My Lords, the Minister has talked about declaratory arrangements, and said that the lessons of Windrush are that this is dangerous. Is the problem not how the Government respond to situations in the future, rather than what type of scheme it is?
Brexit: Refugee Protection and Asylum Policy (EUC Report)
Baroness Hamwee Excerpts(4 years, 2 months ago)
Grand CommitteeRead Full debate Read Hansard Text Read Debate Ministerial Extracts
Baroness Hamwee (LD) [V]
My Lords, I thank the noble Lord, Lord Jay, for his introduction. I am sorry not to have had the opportunity to serve under his chairmanship. I know that the noble Lord, Lord Ricketts, will understand absolutely that that is not a comment on his chairmanship. Indeed, I share his disappointment on the timing of the response, the difficulty of obtaining information and the appearance, or not, of the Minister before the committee next week.
The year since the report was published must have seemed very long to the refugees and asylum seekers who are its subject, and it was a year in which progress has been undetectable. I hardly need to stress the importance of the issue. At a meeting of the EU Security and Justice Sub-Committee which has been mentioned, a witness said—the noble Baroness, Lady Goudie, echoed this—that the causes of child migration were
“war, poverty, climate change and now the pandemic.”
I would add enormous human rights violations. He said:
“It is a deadly scenario”.
When we were debating this in Committee on the immigration Bill, the Minister referred to a
“draft legal text for a negotiated agreement for a state-to-state referral and transfer system which would provide clear and consistent processes between the UK and EU member states, ensuring appropriate support for the child and guaranteeing reciprocity … We have acted in good faith and hope the EU will do the same.”—[Official Report, 14/9/20; col. 1076-77.]
Co-operation, as the noble Lord, Lord Dubs, has said, is essential. I do not want to challenge the Minister’s good faith, but the text is a poor thing: there are eight very well-spaced pages of which are only four are substantive, and requests to and from the UK are discretionary. Perhaps I should say it was a poor thing. As the noble Lord, Lord Kerr, I think, said, we are told that the Bill is still on the negotiating table, but neither then nor now was there any sign of it being urged forward. We have heard about the Catch-22 of this not being within the EU Commission’s negotiating mandate, but being a competence of the EU so that it is not open to member states to negotiate. This has emerged more into the public domain through a report in the press on 3 September, before we started in Committee on the immigration Bill, so a clarification on this will be welcome. Are we, or more importantly, the people affected in a Catch-22 situation? If we are, or whatever, what ways are being sought to go ahead with bilaterals, as the noble Lord, Lord Blencathra, asked? How is that getting on?
The Government responded to this committee’s report that
“there is a real mutual interest in a close future partnership … ensuring safe and legal passage for the most vulnerable.”
Presumably that still stands, because creating safe and legal routes is the best way of tackling racketeering, smuggling, trafficking and the danger involved to dignity, a safe existence and life itself. It surely must include routes, not just from the Middle East. It is reported that there are 10,000 children missing in the EU.
Can the Minister therefore say what criteria the Government will be applying? As the noble Lord, Lord McConnell, said, let us come out of this with some good, humane arrangements. Surely what we end up with must include wide rights of family reunion. The current rules are inadequate, limited to “serious and compelling” family or other reasons, which make the exclusion of children “undesirable”—is not that exclusion always undesirable? That is coupled with a substantial fee for having family in the UK take on the care of a child, and they must have the means to do so. There is indeed discretion outside the rules. Can the Minister tell us how many applications have been received, how many have been granted and how many refused year by year since—to pluck a figure out of the air—2010? I do not expect her to have that information at her fingertips today, but it would be very helpful to have it by letter following this debate. It is unlikely that new agreements will be in place in three months’ time so, like other Members, I would be glad to be reassured about the position from January onwards—in particular, that “family” will not be interpreted in a narrower way than it is under Dublin.
Sometimes our debates on Brexit become quite technical; I would be the first to acknowledge the alphabet soup of EU acronyms. However, behind them all are individuals. All refugees and asylum seekers are vulnerable, to different extents, but by definition they are vulnerable, as I think the noble Baroness, Lady Warsi, reminded us—she certainly reminded us of the importance of language. Enabling families to be together and good, wide sponsorship rules are the best basis for people to settle here in the widest sense of the term “settlement”. If the Minister tells us that all this would create a pull factor, I reject that, other than in very rare cases. On the contrary, I find it extraordinary what extreme situations people endure before it finally becomes too much; the noble Lord, Lord Bhatia, alluded to that. A local authority as a corporate parent is not as good by a long way generally as a real parent, an uncle, aunt, grandparent or older sibling, and I have met some wonderful foster parents.
We know about the problems in Kent and the alarming prospect of the use of an IRC to accommodate children. We know that local authorities are cash-strapped. What are the Government doing to enable local authorities around the country to play their part?
Like much of the letter received early today, to which the noble Lord, Lord Ricketts, referred, the Government’s response to the report was rather complacent; the noble Earl, Lord Sandwich, made a similar point. It made reference to the role of local authorities, but without the recognition that they cannot be expected to magic resources out of thin air. Safe and legal routes should operate without challenge because the legal rights and obligations include specific obligations—under Dublin, at any rate—regarding the processing of claims. Does the Minister have anything to share with your Lordships on the progress within the Home Office on additional staffing and training, or has Covid halted all that? One positive line in the draft text was the “best interests of children”, although there is no systematic process for identifying what that means to different parties or operation rights.
Lord Parkinson of Whitley Bay (Con)
My Lords, the noble Baroness has gone rather over her eight minutes. If she could bring her remarks to a close, that would be appreciated by the rest of the Committee.
Lord Parkinson of Whitley Bay (Con)
I am so sorry—I apologise for interrupting.
Baroness Hamwee (LD) [V]
I hope that the noble Lord will not include that exchange in my 10 minutes.
On the importance of the best interests of children, perhaps the noble Baroness can also tell us of any progress on piloting trafficking guardians and update us as to arrangements with the French and Belgian Governments. Can she also comment on the loss of data-sharing arrangements with the EU, and on arrangements to replace what we have had from the Asylum, Migration and Integration Fund? Not only has progress been undetectable but it seems that there has also been an undetectable political will to sort this out. We need political will to create safe and legal routes. That is not a mantra; it is really important to save lives and make the lives of many people worth living.
Counter-Terrorism and Sentencing Bill
Baroness Hamwee ExcerptsMonday 21st September 2020
(4 years, 2 months ago)
Lords ChamberRead Full debate Counter-Terrorism and Sentencing Bill 2019-21 View all Counter-Terrorism and Sentencing Bill 2019-21 Debates Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: Consideration of Bill Amendments as at 21 July 2020 - large font accessible version - (21 Jul 2020)
Baroness Hamwee (LD)
My Lords, it is easy to talk about countering terrorism, so I want to start by expressing my thanks to all those in the different services who do the work. However, that does not lead me to the view that tougher legislative measures are the best form of prevention. The current Independent Reviewer of Terrorism Legislation—we have a bounty of reviewers with us today—wrote that the services’ propensity to argue for more tools in the toolkit was
“a homely phrase, which risks obscuring the question of justifying them.”
The most effective of tools used wisely are resources—resources addressed to the fear of being caught and of course prevention, so it is depressing that the focus of the Bill is punishment. What about radicalisation and rehabilitation, as other noble Lords have said and I am sure more will say? What will be the role of the reorganised, the re-reorganised, probation service? In the recently published review of MAPPA, to which my noble friend referred, Jonathan Hall recommends
“wider sharing with probation officers not only of specific intelligence but also of threat assessments and profiles”
and that they be given
“training in the principles of intelligence assessment.”
In parenthesis, but not I think irrelevant, I note that the Commons were told that the MAPPA review would be published by the time the Bill started in this House. It has been, and I might be flattered by an implicit recognition of our effectiveness, but as so often happens, something relevant not just to the debate but to everyone’s thinking is made available when the opportunities to amend the legislation are very limited.
That could lead me on to the delay in the review of Prevent, but I will save that for Committee as I want to concentrate on TPIMs. We are heading back towards control orders by another name, which I know will be approved of by some, but not by these Benches. I want to say a word about the impact of TPIMs on people—people for whom they are not intended as a punishment. The Bill deals with a limited number of measures, but they are part of the whole of what I have heard referred to as “social death”, such that the subject regards prison as preferable because it enables more social interaction and social freedom. TPIMs are outside the criminal justice system but mean being lifted from one’s community and placed somewhere utterly unfamiliar without the support of one’s normal contacts. To pre-empt the point that the contacts are the problem, I say that we should not ignore positive engagement with and monitoring by family, colleagues and co-religionists. Jonathan Hall writes of the emerging profile of a terrorist risk offender as
“lonely, vulnerable, self-radicalised individuals who are drawn to extreme views, usually encountered and reinforced online, many with poor mental health.”
TPIMs reinforce the sense of isolation of those who already have only a tenuous grip on reality. Whether loners or settled in a family, reporting, extensive curfews and controls on computers all make it difficult or impossible to find work. Visitors find security clearance and distance too great a hurdle while the children of the family grow up with depression, an enduring sense of injustice, and are bulled at school as “jihadi kids”. Familial cohesion breaks down. There are six current TPIMs, but that does not mean that only six people are affected, and now there will be no certain end in sight. Mr Hall also writes about the importance of stable accommodation in the right area in mitigating risks and says that the ability to find it and obtain support for mental health may depend on how effectively the police, prisons and probation are able to demonstrate its importance.
The Government take the view that lowering the standard of proof increases the flexibility of TPIMs, making it more practical
“to satisfy the requirement to demonstrate an individual is, or has been, involved in terrorism related activity.”
“Flexible” is a weasel word, as is the term “easier to demonstrate”. Of course, it will be easier to demonstrate: the Secretary of State will no longer have to be satisfied that an individual is or has been involved in the activity but just to have reasonable grounds for suspicion. The independent reviewer reports that
“even administrative convenience does not appear to provide a basis for reversing the safeguard of a higher standard of proof.”
which he says “has not proved impractical”.
In addition to his analysis of the lack of safeguards, including judicial safeguards to which the noble and learned Lord, Lord Thomas, just referred, he observes that, “The criminal justice route of fair trial and sentence commands the widest public support.” I will add from these Benches that by lowering the standard of proof, we will be lowering our standards too.
Immigration and Social Security Co-ordination (EU Withdrawal) Bill
Baroness Hamwee ExcerptsWednesday 16th September 2020
(4 years, 2 months ago)
Lords ChamberRead Full debate Immigration and Social Security Co-ordination (EU Withdrawal) Act 2020 View all Immigration and Social Security Co-ordination (EU Withdrawal) Act 2020 Debates Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: HL Bill 121-IV(Rev) Revised fourth marshalled list for Committee - (14 Sep 2020)
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.
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.
Baroness Hamwee
“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.
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.
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.
Baroness Hamwee
“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?
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.
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.
Baroness Hamwee
“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.
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.
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.
Baroness Hamwee
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.
Baroness Hamwee
“( ) 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.
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.
Immigration and Social Security Co-ordination (EU Withdrawal) Bill
Baroness Hamwee ExcerptsMonday 14th September 2020
(4 years, 2 months ago)
Lords ChamberRead Full debate Immigration and Social Security Co-ordination (EU Withdrawal) Act 2020 View all Immigration and Social Security Co-ordination (EU Withdrawal) Act 2020 Debates Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: HL Bill 121-IV(Rev) Revised fourth marshalled list for Committee - (14 Sep 2020)
Baroness Williams of Trafford (Con)
We will be talking about the EU settlement scheme in future groups. As I will go on to explain, the scheme does not end, in the sense that, if people are here, certainly between now and 2020, and want to regularise their status, they can do. Of course, the reasonable excuses rule will go on indefinitely as to why people have not regularised their status.
Obviously, these amendments have nothing to do with the Bill, but I hope that I have outlined the various degrees of safeguards that will guard against people being detained indefinitely. We will go on to talk about the EU settlement scheme and some of the safeguards that go around that, particularly ongoing, with people who have missed the boat. I hope, with those explanations, the noble Lord is happy.
Baroness Hamwee (LD) [V]
My Lords, the noble Lord, Lord Kennedy, is absolutely right about the numbers of people who may find themselves in a situation—and not even be aware of it—which is not regularised. Yes, we will come on to talk about the settlement scheme, and perhaps we will pick up the Minister’s words about the possibilities of applying some way into the future.
The Minister started as I expected, by saying that these amendments are not relevant to the Bill and that if we were to include them, we would be discriminating against people who are not from the EEA or Switzerland. It is entirely open to the Government to apply these provisions to everyone, as I think they should be. They are relevant to the Bill. My noble friends Lady Barker and Lord Paddick made it clear on an amendment last week.
We started debate on this group of amendments late on Wednesday and as a result some noble Lords were unable to take part, or cannot participate today. Two have asked me to make a short comment on their behalf. I hope noble Lords will indulge me if I include them now.
Baroness Hamwee
“Right to rent (EEA and Swiss nationals)
(1) The following provisions of the Immigration Act 2014 shall cease to apply to EEA and Swiss nationals and their dependants.(2) The provisions are sections 20 to 37 and Schedule 3 (right to rent).”Member’s explanatory statement
This new Clause would require the Secretary of State to ensure that landlords do not carry out immigration checks on EEA and Swiss nationals under the Right to Rent scheme.
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.
Baroness Williams of Trafford (Con)
I see the noble Lord’s point. We need a further discussion or, indeed, an exchange of letters on this before Report. The first letter that I sent him clearly did not do the trick, so we will have further discussions on this.
I know exactly why noble Lords have tabled amendments that refer to EEA and Swiss nationals, because it puts them within the scope of the Bill. It does not make it any less discriminatory technically and legally, however, but I get his point.
Baroness Hamwee (LD) [V]
My Lords, having a “non-Anglo-Saxon-sounding name”, to use the terminology used by the noble Lord, Lord Judd, I am very conscious of the position. The Minister is, of course, quite right about why we had to confine the amendments to EAA and Swiss citizens, but it is disingenuous to say that we are being discriminatory. I said on the last group of amendments that we take opportunities where we can. We are very happy to invite the Government to apply the amendments to every nationality. Sadly, this is not open to us; as there are no Private Members’ Bills at the moment, our opportunities are pretty limited.
My noble friend Lord Paddick is not into whacking moles—because he is kind to animals, apart from anything else—but he may be very challenging to the Minister. I think it is wise to try to bottom out this issue after this stage.
Reference has been made to the black economy and how people who do not have status are driven into it and are vulnerable to exploitation. There is a big difference between our position and that of the Government. We see that as the outcome of the hostile environment provisions, not as a driver for them. I am intrigued by the points about forgeries that have been made, because it is the Government’s position that physical documents for the EU settled status scheme would open up the possibility of forgery, but we will come to that later.
We have done what we can, for the moment at any rate. I beg leave to withdraw the amendment.
Baroness Hamwee
“Late applications to EU Settlement Scheme
(1) The Secretary of State must, before 30 June 2021, publish a report setting out proposals for dealing with late applications to the EU Settlement Scheme and a motion to approve the report must be debated by both Houses of Parliament.(2) Until the report has been debated and approved by both Houses of Parliament, the EU Settlement Scheme must remain open for applications and the Secretary of State must extend the deadline for applications accordingly. (3) “The EU Settlement Scheme” means the scheme for settled or pre-settled status under Appendix EU of the Immigration Rules.”Member’s explanatory statement
The new Clause will ensure that the EU Settlement Scheme will remain open until such time as the Minister has published proposals as to how to deal with late applications and that report has been approved by Parliament.
Baroness Hamwee (LD) [V]
My Lords, I beg to move Amendment 44 and will speak to the other amendments in my name and that of my noble friend Lady Ludford—Amendments 45 and 46—and to Amendments 52 and 96, in the names of the noble Lords, Lord Rosser and Lord Kennedy.
This group of amendments brings us to the EU settled status scheme, which is dealing and has dealt with huge numbers of applications. I do not seek to deny that, but the task is huge to ensure that all EU citizens in the UK at a given date are able to remain when they have the right to do so. These amendments address aspects of the scheme. Later today we will continue with Amendment 49, in the name of my noble friend Lord Oates, which is about how to prove that status.
Baroness Williams of Trafford (Con)
I hope the noble Baroness takes a look at Hansard. These are not the easiest things that we are discussing, but I understand the grace period SI does not affect the criteria for the EUSS status. The SI is protecting the EEA rights of those who have them at the end of the transition period. I know we will speak further, and I know that she will read Hansard, but I hope in reiterating that point again, she will feel happy that the amendment is withdrawn.
Baroness Hamwee (LD)
I thank noble Lords. I, too, will supply myself with some hot towels and read through all that. We have another opportunity to discuss the grace period on Amendment 80, but I, like my noble friend, feel less than reassured. The issue is whether, without having sickness insurance, one has the relevant rights. The arguments seem to have moved over the past few months as to whether having CSI is necessary to exercise the rights or, in other words, whether you have been the exercising right to free movement or the treaty rights.
Some very pertinent points and questions have been posed during this debate. I wish my noble friend Lady Smith had not reminded me about tax returns and the amount of filing I have to do, but she was right and explained my reasoning on Amendment 45 better than I did. There has been a focus on individuals throughout this. I agree with my noble friend Lord Greaves that it is not about the numbers of people. What matters matters to 100% of each individual.
Lord Parkinson of Whitley Bay (Con)
The noble Lord is talking to an amendment that comes up later.
Baroness Hamwee (LD) [V]
My Lords, I have my name to this amendment on behalf of our Benches. The subject matter of this amendment, and that of later Amendment 62, are very close. Amendment 62 is about family reunion, and the noble Baroness, Lady Primarolo, in particular, referred to that. It will not escape the Committee that there is a particularly persuasive factor to Amendment 48, and that it is led by the noble Lord, Lord Dubs, whose track record in leading the House on issues relating to refugees, particularly child refugees, is second to none.
I do not want to repeat points that have been made about push and pull factors, or about children’s experiences. I am very clear about the moral issues that have been referred to. As the noble Lord, Lord Alton, has rightly reminded the House, the Government has not done nothing. It will, however, be hearing the call to do more.
I want to make some technical points. Ministers tell us they are working hard—I do not mean to impugn anything there—to ensure that unaccompanied asylum-seeking children are looked after in the best possible way after we leave the Dublin regulations. As we have heard, they have referred to the draft negotiating document, the draft working text for an agreement between the EU and the UK on the transfer of these children, but there are two problems. First, there is nothing firm about that text: member states “may” make a request to transfer a child, and the UK “may” make a request to member states. Secondly, the EU has no mandate to negotiate on behalf of member states on this. To deal with the latter first, the Security and Justice Sub-Committee of the House’s Select Committee on the European Union took evidence on the text in July from witnesses, including the noble Lord, Lord Dubs, and Professor Elspeth Guild, who explained the position to us. In the political declaration of last October, which is the basis for the commission’s negotiations—it has been given a mandate to negotiate on that basis—there was only one section on what is called illegal migration, which in turn is the basis for a draft agreement. That provides for co-operation to cover only three subject areas which do not include this issue.
When I first read the political declaration I wondered whether illegal migration covered refugees at all because they are not illegal, but since one of the three issues is tackling problems upstream, that suggests that refugees come within it. However, I will not challenge a professor of law with posts at two prestigious institutions, and I follow her argument. The EU has no mandate in negotiations, but that is not the end of it. The UK cannot negotiate an agreement member state by member state, because this is, counter-intuitively in view of what I have said, a fully exercised competence of the EU, so it is not open to member states to negotiate with the UK. It is counter-intuitive and a Catch-22 situation. Professor Guild said:
“The idea that we would be able to negotiate with each member state an equivalent of Article 6 of the Dublin regulations seems to me … astonishingly naive.”
It would need a lot of political will on all sides to sort this out through the UK-EU negotiations. We are all aware that matters are somewhat tense—would that be the right description? I, like others, am not optimistic about a positive outcome.
In January 2019, when the House was considering this issue, the Minister wrote to noble Lords that:
“negotiations ahead can be carried out with full flexibility and in an appropriate manner across all policy areas”,
referring to
“the traditional division between Government and Parliament”.
Given what we all know, or maybe do not know but suspect, about what is going on, is it wise to rely on the possibility of negotiation?
Apart from the principle, there are some shortcomings in the draft text of the provisions: the “may”, not “must”. It also says that no rights can be directly invoked in the domestic legal systems of the parties. That alone would make it hard to go along with the text. However, we can sort this out in domestic law, hence the amendment. The noble Lord, Lord Dubs, has been as persuasive as ever. The noble Lord, Lord Kerr, has been clear about channel crossings. I will not go on; I agree with pretty much everything—possibly everything—that has been said. Immigration Bills come along quite frequently, but we should not wait for the next one. The amendment is not a big ask; its objective, in proposed new subsection (5), is clear, but it requires strategy and clarity about reaching that objective. Crucially, it refers to the “child’s best interests”. We should take this opportunity to provide this safe and legal route for children.
Lord Rosser (Lab)
My Lords, Amendment 48 provides that the only existing legal route, which is under the Dublin III convention, for asylum seekers, including unaccompanied children, to join family in the UK would remain operational after the end of the transition period. It also requires the Secretary of State to lay a strategy before Parliament to ensure that unaccompanied children continue to be relocated to the UK if it is in the child’s best interest. Family reunion under the Dublin III convention will no longer apply after the end of the transition period, in just over three months’ time. That means that vulnerable child refugees seeking to join relatives in the UK will no longer have this, or any other, safe route to our country, unless—which looks increasingly unlikely—there is a deal with the EU before the end of the transition period, which incorporates an alternative family reunion arrangement.
The Government have previously given assurances that they would protect family reunion for unaccompanied children. However, the UK’s draft proposal for a replacement to family reunion no longer includes mandatory requirements on the Government to facilitate such reunions. Instead, it makes a child’s right to join their relatives discretionary and, on top of that, abolishes a child’s right to appeal against a refusal. Vulnerable refugees, including accompanied children and adults, would lose access to family reunion entirely. The evidence indicates that, without a mandatory requirement, family reunions will, to all intents and purposes, end, which may be the intention behind the Government’s draft proposal.
For the five years before mandatory provisions were introduced by Dublin III, from 2009 to 2014, family reunions of children and adults to the UK averaged just 11 people annually. After mandatory provisions were introduced by Dublin III, family reunions to the UK averaged nearly 550 people annually. Significantly more than 11, but not a significant number in itself, compared with the overall net migration figure of some 200,000 plus. Without a mandatory requirement, children are likely to remain stranded in Europe indefinitely; alternatively, some may risk the more hazardous routes, involving crossing the Channel in small boats or a lorry in an attempt to reach family members.
Baroness Hamwee (LD) [V]
The noble Lord, Lord Polak, said that this was a practical proposal. I think the term tonight is “pragmatic.” That seems to be the one that the Government put forward in defence of their own position on other matters. This proposal is both practical and pragmatic and, as the noble Lord, Lord Alton, says, gives us the chance to do something useful. It is useful for those who argue—and we have heard arguments—persuasively and anxiously that they are denied their back-up, in the words of the3million campaign.
The digital status will not be infallible, but there are steps to it which can fail at any point. The examples given by the noble Baroness, Lady Bull, are very important ones of people who need and will value having physical documents. I add to them those who have been helped by organisations, sometimes organisations funded by the Government as part of these arrangements, who may not be able to make contact with the organisation in a few years’ time. They may not even remember which organisation it is, or the organisation may no longer be in existence. Yes, one might be able to search one’s computer to see where the information is. I cannot always remember who sent a particular email and, actually, I have my emails pretty well organised into folders and sub-folders. But then I suppose that I am “elderly”—and I would be grateful if Hansard put that in quotes.
The digital rollout is a big bang for the EU settlement scheme. Obviously, it is a matter of some pride to the Government, which is why they are so resistant; they have to hold on to this as a principle, because it is part of a rollout for the whole of the immigration arrangements. I assume that they will have some review before they continue with the rollout. One thing that I have learned during all this is that it took Australia 19 years to make everyone comfortable with purely digital arrangements, and Australia does not have the hostile environment provisions that we have in the UK. I very much support what my noble friend and others seek to do.
Lord Kennedy of Southwark (Lab Co-op)
My Lords, Amendment 49, moved by the noble Lord, Lord Oates, inserts into the Bill a simple new clause that gives peace of mind to the individuals who request it. As the noble Lord said, it is very specific. I fully understand why someone would want physical proof that they have the right to remain here in the United Kingdom.
In his introduction, the noble Lord, Lord Oates, set out a number of examples of problems you may need to deal with. One is the whole question of being able to rent a property. You may be required to prove your status, and I can understand a landlord being reluctant. Of course, the Government have made sure that landlords will pay a heavy price if they rent out properties to people who are not entitled to rent them. I can see the same problem for employers. When you take somebody on, you need to check and confirm that they have the right to work here. Again, I can see an employer being worried that they could take somebody on and then find that they themselves have potentially committed an offence. There are real issues here.
The problem is that it probably will not happen next week but in 10 or 20 years when we are no longer involved, all the officials have moved on and God knows where the records are. That is part of the problem. If I was in this situation, I would want to have some physical proof that I could keep safe and that, if necessary, would protect me in future if my status were at some point questioned. The noble Lord, Lord Oates, said we have to understand the stress and anxiety of people not having that physical document that they can put away, knowing they have this proof. With the Windrush scandal we have already seen cases of documents not being around and people who have lived in this country for many years, often coming here as children, really struggling to provide proof. I also support the call for it to be free of charge.
The noble Baroness, Lady Bull, made a powerful argument about people who flee abusive relationships, which are all about control. If you do not have control of yourself—being able to rent that property or to get another job—you are almost forced to get back in contact with the person you have already left, fearing for your safety. It cannot be right that the Government are creating conditions that cause those problems for people.
Amendment 51, in my name and those of my noble friend Lord Rosser and the noble Baroness, Lady Bennett of Manor Castle, seeks to do the same thing with slightly different wording. It says “must make provision”, whereas the amendment from the noble Lord, Lord Oates, says proof must be available on request, but it is basically the same issue.
While sitting here, I was thinking about some of the things I do. I do not know whether other noble Lords have ever done a citizenship ceremony. It is very interesting. I have done hundreds of these ceremonies and spoken to hundreds of people who have been given citizenship. What happens is that you go into the council chamber in Lewisham Town Hall, I walk in, and then the official—normally one of the registration officers—explains carefully to the new citizens what it means to be a British citizen. They then have to swear or affirm an oath and we sing the national anthem. The final part of it is that they walk up and I hand them a certificate signed by the Home Secretary. I have handed them out signed by Theresa May, Amber Rudd and Sajid Javid. The official tells them that this is a really important document and says, “Before you leave, please check that your name and those of your children are correct. It’s your right to be a British citizen”. Then we have our photograph taken. There are hundreds of photographs all over Lewisham of me handing out certificates to new citizens.
We have this situation in which if you are a British citizen you get a certificate, but if you have settled status you cannot have one. That is utterly ridiculous. I hope the Minister will see how nonsensical that is, go away and deal with this and come back on Report.
Lord Judd (Lab) [V]
My Lords, I warmly congratulate my noble friend Lord Rosser and the other signatories to this vital amendment. The new clause they have described would delay application of “no recourse to public funds” rules during the current pandemic and until such time as Parliament decides. That is a high purpose.
While I enthusiastically support the amendment, as Amnesty and other non-governmental organisations working on the front line remind us, there is a need to look at the importance of providing access to welfare support for all people in the group with which we are currently concerned during the current and future pandemics to ensure that people lawfully in the UK whom it is plainly anticipated will remain here, such as people permitted to stay by reason of their private life and people who have joined family for purposes of settling, are not left destitute.
Of course, while Amendment 73 provides an opportunity to examine the wider implications, I stress again that the NGOs are right to insist that we need to look at all those who are put in jeopardy by circumstances out of their control such as the pandemic, and measures taken in response to it, as well as illness, accident, redundancy and changes to immigration rules, or things that people have been given no or insufficient opportunity to plan or prepare for. This is an utterly humane and sensible amendment and I do hope it finds favour with the Government.
Baroness Hamwee (LD) [V]
My Lords, Covid has proved a desperate situation in so many different ways. One of the telling impacts is on individuals who have no recourse to public funds, not just for them as individuals but, as other noble Lords have said, in the context of public health, if they have to go to work, or to collect food from a food bank or other donors. The position is diametrically opposed to the UBI universal benefit, to which reference has been made. There is a lot to be said for that.
On Amendment 73, it occurred to me to ask what the policy aim is, because it reads as a hostile environment measure. What is the purpose of applying the no recourse rule to people whose future clearly lies in the UK? It is hard not to come to the conclusion that it is about starving them out.
Baroness Williams of Trafford (Con)
My Lords, I thank all noble Lords who spoke on this group of amendments concerning exemption from no recourse to public funds. I will reply to Amendments 53 and 73 together because they are quite similar in nature. I recognise the strength of feeling on this issue, particularly in the light of the challenges that many people face as a result of the current pandemic, as noble Lords have talked about. I genuinely welcome noble Lords’ desire to ensure that those most in need, particularly children, are supported at this time but I am afraid that I cannot accept these amendments. I will go through the reasons why.
As noble Lords will know, most migrants visiting, studying, working or joining family in the UK are subject to a no recourse to public funds condition until they have obtained indefinite leave to remain. Individuals here without leave are also subject to the condition. The noble Baroness, Lady Lister, and the noble Lord, Lord Rosser, asked for numbers. I am afraid that these numbers are not part of the published statistics, but I know that Home Office analysts are looking at the data to determine what figures could be reduced.
The noble Baroness also talked about the provision of data. In his letter to the UK Statistics Authority, the Home Office chief statistician committed
“to further investigate the administrative data we hold to assess whether it can provide any meaningful information on the issue of hardship specifically”.
However, given the fluid nature of migration, it is quite difficult to provide an accurate figure of how many people are subject to NRPF, but we will do our best to get some meaningful figures.
The policy is based on the well-established principle that migrants coming to the UK should be able to maintain and support themselves and their families without posing a burden to the welfare system. It is designed to assure the public that controlled immigration brings real benefits to the UK and does not lead to excessive demands on the UK’s finite resources. In exempting a significant cohort from the no recourse to public funds condition, even for a limited time, the new clause proposed by Amendment 53 would undermine this policy and increase the pressure on those resources. Depending on how far into 2021 and beyond this new clause continued to apply, it may also act as an incentive for EEA citizens who are not covered by the withdrawal agreements or other immigration leave to attempt to come to the UK to access benefits and services to which they would not otherwise be entitled.
Nevertheless, the Government absolutely recognise the importance of supporting those in genuine need. Existing exemptions and safeguards are in place to ensure that lawful migrants who are destitute or at imminent risk of destitution can receive support, including the option to apply to have the no recourse to public funds condition lifted. During the pandemic, as noble Lords will know, the Government have gone further by introducing measures such as the Coronavirus Job Retention Scheme—the noble Baroness, Lady Lister, referred to this—and the self-employed income support scheme to support people, including those with no recourse to public funds.
More than £4.3 billion has been allocated to local authorities in England to support them in delivering their services, including helping the most vulnerable, with further funding for the devolved Administrations. As the noble Baroness, Lady Lister, alluded to, the Government have also temporarily extended the eligibility criteria for free school meals to support families with NRPF, in recognition of the difficulties that they may be facing during these unique circumstances.
Those individuals with leave under the family and human rights routes can apply to have the condition lifted through a change of conditions application. The Home Office is prioritising and dealing with these applications compassionately, as shown by the 89% of 5,665 applications accepted in the second quarter of 2020, due to exceptional changes that some individuals faced in their financial circumstances. We cannot say what percentage of these with NRPF the 5,665 represents.
I turn to Amendment 73, which would extend the exemption beyond the current pandemic. Under our new global immigration system, EEA citizens coming to the UK will be subject to the same requirements as non-EEA citizens, including the same conditions restricting access to public funds. The effect of this proposed new clause would be to maintain an immigration system that provides preferential treatment regarding access to benefits and services to EEA citizens over most non-EEA citizens. This is not the Government’s intention, creating a system that is not fair and does not reflect the will of the British people, demonstrated by the EU referendum and, more recently, the general election.
To answer the question of the noble Lord, Lord Rosser, I can say that those EEA citizens who are already resident here, or who are resident by the end of the transition period, can apply to the EU settlement scheme. This allows them to access benefits and services in the UK on at least the same basis as they were before being granted that status, so EEA and Swiss nationals with pre-settled status are not subject to NRPF. That significantly reduces the need for these amendments.
I understand the need to protect the vulnerable, especially during this time, and particularly in cases involving families or children, but there are already measures in place to provide this support. These proposed new clauses would also undermine the intention to create a global unified immigration system which treats EEA and non-EEA citizens equally. For the reasons I have set out, I hope that noble Lords will be happy not to press their amendments.
Immigration and Social Security Co-ordination (EU Withdrawal) Bill
Baroness Hamwee ExcerptsWednesday 9th September 2020
(4 years, 2 months ago)
Lords ChamberRead Full debate Immigration and Social Security Co-ordination (EU Withdrawal) Act 2020 View all Immigration and Social Security Co-ordination (EU Withdrawal) Act 2020 Debates Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: HL Bill 121-III Third marshalled list for Committee - (9 Sep 2020)
Baroness Hamwee
Member’s explanatory statement
This amendment is to probe the need for supplementary in addition to incidental provision.
Baroness Hamwee (LD) [V]
My Lords, I shall speak also to Amendments 15, 16 and 17. These amendments take us back to the very wide provisions in Clause 4, on which we spent a good deal of time on Monday, when we debated the problems of a skeleton Bill and the reports of your Lordships’ Delegated Powers and Regulatory Reform Committee and Constitution Committee. From those respective committees, the noble Lords, Lord Blencathra and Lord Pannick, applied their different but devastating critiques. My noble friend Lord Beith asked the pertinent question about what instructions had been given to the drafters of these provisions. After all, responsibility to give instructions lies with Ministers.
Had the Minister accepted the earlier amendments to Clause 4, particularly those changing “appropriate” to “necessary” and deleting the phrase “in connection with”, some of the ground would have been taken from under my feet. However, she did not and it was not; nor was the insertion of the term “only” in subsection (3)—that is, “may only make provision”—accepted.
Subsection (3) purports to explain subsection (1). The power to make regulations includes powers as listed in paragraphs (a) and (b). It does not limit those powers but just gives examples, and all my amendments seek to omit words from this clause. The first concerns the term “supplementary”. Why is it necessary to make “supplementary” provision as well as provision that is “incidental” and “in consequence of”?
The second amendment would omit the term “transitory”. I would be interested to know what is meant by the term in this context. It must mean something different from “transitional” because it sits alongside that term. It is a narrative word that I would have expected to read in a piece of fiction rather than in legislation.
Amendment 16 would take out paragraph (b), which gives the power
“to make different provision for different purposes.”
I am very familiar with this phrase; it may mean bringing provisions in at different times or for different jurisdictions and so on. However, my antennae were well up by the time I got to Clause 4(3)(b), and I would be grateful if the Minister would share with the House the different purposes that may be required, particularly in a Bill so urgent that it needs to come into effect very quickly. I can see that it may be important to bring some provisions in as soon as the Bill becomes an Act and others—particularly with regard to the settled status scheme—at a later date. However, it would be helpful to have her comments on this.
Amendment 17 would leave out subsection (4) as a whole. The amendments to this subsection had already been dismissed and one begins to wonder whether it is necessary at all, but opposing this provision will be a good summary of our concern about what are, to our eyes, its many flaws. I beg to move.
Lord McColl of Dulwich (Con) [V]
My Lords, I speak to Amendment 15. Clause 4 gives the Government substantial powers to make decisions about the future regulation of immigration without clarity about what these might be and what justifies such a wide power. Of course, we recognise that there needs to be an ability to do some tidying up of associated legislation when a Bill is passed, but the consequential amendments are normally set out in a schedule with a tidying-up clause that picks up anything that has fallen through the gaps. This does not seem to be the case in this Bill.
In August, the Delegated Powers and Regulatory Reform Committee said that this clause 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”.
The committee was very clear that transitional arrangements to protect the legal rights of EEA citizens should appear in the Bill.
Last week, the Select Committee on the Constitution also made strongly worded recommendations on the Bill. It agreed with the Delegated Powers Committee’s concerns about Clause 4. Other noble Lords have already raised questions about phrases in this regulatory power. Amendment 15 is an attempt to understand why the Government need a power that makes transitory provisions, provisions that are not permanent. I hope the Minister will set out examples of what transitory provisions the Government consider might be needed.
Baroness Williams of Trafford (Con)
I gave an example of “supplementary”; I did not give any examples of “transitory”. I will write a list and send it to noble Lords.
Baroness Hamwee (LD) [V]
My Lords, I should be particularly interested to see examples of what “transitory” is. The noble Lord, Lord McColl of Dulwich, was also concerned about this. The noble Lord, Lord Kennedy, used the phrase “open to interpretation” and that is exactly the problem, because it allows activist lawyers to come and question. We are really on the side of the Government here, because the clearer the legislation, the easier it will be for them to enforce it, but there we go: that is not my business really, is it?
The Minister said that these are standard provisions. I had a very quick look at the internal market Bill shortly before this session started, because I had picked up that there are some issues in this territory—sorry, no pun intended. I could not find them, but it seems to me that the standard provisions get longer and longer. People get worried about whether a word is absolutely precisely on the point, and more words—adjectives, mostly—get added.
If the House agrees—we may come back to this at the next stage—that “appropriate” and “in connection with” are not appropriate for legislation because they are not clear enough and are too wide, as the rest of the clause comes under those overarching words, we will have got rid of the rest of the problem. But that is not for now and, for the moment, I beg leave to withdraw the amendment.
Baroness Hamwee (LD) [V]
My Lords, some very compelling speeches have already been made. The noble Baroness, Lady Bennett, talked about a power grab: maybe it is just a cash grab. The Home Office seems to have managed to modify fees and charges in the past very successfully—subject, of course, to the outstanding appeal which she mentioned. Is it the case that the Home Office could not charge any fees at all to those who fall within the scope of the Bill without this power? In other words, is this limited to the ending of free movement, and the other EU-derived rights, and the position of Irish citizens?
As I recall, and I may be wrong, originally, a fee was proposed for applications to the EU settled status scheme. That was dropped. I thought that that was because of the outcry, but I wonder whether in fact the Home Office thought it might be challenged on the basis that a charge was ultra vires.
What is envisaged? Is it that these three groups of citizens will be in exactly the same position as non-EEA citizens as regards these charges? Yesterday’s events and the UK’s attitude to the Belfast agreement adds to my worry about how we will treat our friends from Ireland after the Bill comes into effect.
My limitation to a reduction in fees, in Amendment 21, is of course to probe the need for a power.
Baroness Hamwee
“(5A) Regulations under subsection (1) must provide that any EEA or Swiss national, and any adult dependant of any EEA or Swiss national, who has applied for asylum in the United Kingdom may apply to the Secretary of State for permission to take up employment (without limitation as to the type of employment) if a decision at first instance has not been taken on the application within 3 months of the date on which it was recorded.”Member’s explanatory statement
This amendment would require the Secretary of State to make regulations enabling asylum seekers to work once they have been waiting for a decision on their claim for 3 months or more.
Baroness Hamwee (LD) [V]
My Lords, Amendment 22 is the first in a group that also includes Amendments 24, 29 and 31, all relating to asylum seekers’ right to work. On the first day of Committee, the noble Lord, Lord Hodgson, on a very different amendment, talked about the purposes of work. I noted them down as being to earn money, for self-actualisation and as a matter of reputation. These all apply not just to you and me but to asylum seekers.
All the amendments in this group are variations on a theme. Our Amendment 22 would give an asylum seeker the right to work after three months if there has been no decision on his or her case. It will not escape noble Lords that the “if there has been no decision” is an important part of this.
The amendments are expressed to relate to EEA and Swiss nationals, to bring them within the scope of the Bill, but it is not beyond the scope of one’s imagination to think that there may be people seeking asylum in the UK from EU countries—Poland and Hungary might spring to mind—so it is not irrelevant. This is not just straining to debate a matter that I know has concerned many noble Lords for a long time.
The Minister may tell us that we will soon see a Bill about asylum, which the Home Office is currently reviewing. That is, it is reviewing the issue of asylum rather than a particular Bill. The Committee will be glad of any news not just about the Bill but about the consultation that the Home Office is undertaking with stakeholders about these issues. There are many stakeholders.
I see that the noble Lord, Lord Parkinson, has moved to the position from which he will respond—at least it looks that way; I am looking at him on a rather small screen—and I hope he will be able to give some assurances about consultation with stakeholders with regard to the changes in our asylum provisions.
The great majority of asylum seekers are keen to work. Persistence is probably part of the make-up of many of them by definition, their having managed to get to this country. They want to pay tax and to contribute to their new society. They are often very skilled; that will be the subject of the right reverend Prelate’s Amendment 31.
It is very harsh not only to provide such a low daily allowance—I know the noble Lord would be required to disagree with that—but to take a long time in determining claims. In a way, that is the real issue. We picked three months because that gives time for an individual to settle. An asylum seeker may need longer to become comfortable with the English language if he is not already an English speaker, though I am constantly impressed by people’s facility with English. It puts me to shame.
There is also the issue of preventing working. I referred to self-actualisation and reputation, the terms used by the noble Lord, Lord Hodgson. We all know the value of work to each of us as individuals: the sense of self-worth and of achievement with a job well done, or at least attempted. We know what it does for our well-being and for good mental health, and how important it is to be able to support one’s family.
I know the Committee will be interested in the right reverend Prelate’s proposal for the displaced talent visa, which recognises the skills that refugees bring with them, but Amendment 31 is not an alternative to the other amendments in this group. It is about a visa and about refugees, not asylum seekers whose status is not yet recognised. It is imaginative, and the Government may consider it something to be pursued. I am sure the right reverend Prelate would be the first to agree that his amendment should not be a sop to distract us from the other issues to which I have referred. I beg to move.
Baroness Meacher (CB) [V]
My Lords, Amendment 29 seeks to ensure that asylum seekers from the EEA and Switzerland will be granted permission to take a job from six months of their application for asylum if a decision at first instance has not yet been taken at that point. It is fairly obvious that I support the three-month amendment from the noble Baroness, Lady Hamwee, which is a little more radical than this one, and hope the Government may accept it.
The Minister will be aware that people often wait months, if not years, for a decision. These individuals, having escaped fear of torture or death, are left to live on a pittance of £5.66 per day. As I considered what to say today, I found myself thinking that, of course, six months in this situation is far too long. What are we as a nation doing impoverishing people in our community? Frankly, £5.66 is a disgrace.
The plea for the right to work after six months is endorsed by no fewer than 200 non-profit organisations. This is a very modest and widely supported proposal. Even Sajid Javid recognised in 2019 that it is time for reform. The coalition of these 200 organisations wants the six-month reform combined with the ending of the restriction on asylum seekers from applying for jobs not on the incredibly narrow and restrictive list of highly skilled professions on the Government’s shortage occupations list. I strongly support the abolition of this restriction, which was introduced only in 2010. That is telling; we seemed to manage pretty well before that.
Now, in effect, asylum seekers are rarely enabled to work. Does the Minister really believe that this is morally right and economically sensible? As Sajid Javid recognised, reform should no longer be delayed. Reform would enable asylum seekers to begin to integrate, to support themselves and live with dignity, to support their children to lead healthy, productive lives and, very importantly, to avoid the very real risk of exploitation and modern slavery.
We would all benefit too. The coalition of 200 organisations calculates that taxpayers would save £97.8 million if asylum seekers were enabled to work from six months. In 2019 it polled over 1,000 businesses for their view on whether asylum seekers should have the right to work. Some 67% of those employers agreed that they should, and a similar number believed it would ease the UK’s skills shortages. There is also huge public support for the right to work after six months. The Government would really have a great political benefit if they would only accept this amendment.
Lord Parkinson of Whitley Bay (Con)
We have had some useful discussions with the right reverend Prelate already and we would be very happy to continue those, particularly with my noble friend the Minister and our noble friend the immigration Minister in the other place, who would be well placed to engage in detail on the topics he raised.
Baroness Hamwee (LD) [V]
My Lords, I begin with the so-called displaced talent visa—asylum seekers embody displaced talent in many cases but, as the right reverend Prelate says, refugees often demonstrate great talent. He referred to employment contributing to social cohesion; that is evidenced in the personal experience of people—friendships grow, which reduces the fear of others, the fear of strangers. When people see the benefits of immigration the contribution to social cohesion is very considerable. The noble Lord, Lord Rosser, mentioned the importance of this to women. I should have made that point, and I am glad he reminded the Committee of it; he is absolutely right. The suggestion was hinted at that we might want to discriminate between members of the EEA and others; of course, that is not the case. We are constrained by the scope of the Bill in these amendments.
I am very glad that my noble friend Lord Paddick used the opportunity to remind the Committee of the problems in Poland. The fact that it is a member of the EU does not excuse them from what has been happening, which he explained to the Committee. It is important not to hold back from criticising one’s friends and one’s partners. This is a very real issue.
The noble Lord, Lord Randall, mentioned voluntary work. Again I am glad that he reminded the Committee of that because it is too often regarded as work rather than volunteering and reduces the possibilities of asylum seekers whose claims have not been determined to undertake activity which so often they are keen to do. It also means that a number of charities have to be extremely careful about the opportunities that they can offer because they are aware that what they must offer is volunteering and not voluntary work.
We have rightly been reminded of the importance of not seeing people reduced to getting into the black economy or becoming vulnerable to slavery, given the cash that is available to them, which I acknowledge is in addition to other support; many of us are not comfortable with that support, although it has recently been increased by the princely sum of 26p a day.
I am with the noble Lord, Lord Kerr, in the call for a response to the fire on Lesbos. We are in a position to respond to it. I agree with the noble Lord, Lord Green, but only to the extent that the process needs to be speeded up. He will not be surprised that otherwise I take a very different view. That goes to some of the comments from the noble Lord, Lord Parkinson. One incentive to getting into Britain by very dangerous means is to join one’s family. The narrative that we hear too often is that most refugees in France try to cross the channel to the UK. That is not the case. Safe and legal routes would sort this problem out.
The Minister referred several times to the Migration Advisory Committee having been instructed to assist with the review being undertaken by the Home Office. Can he tell the Committee when it was instructed and what the likely timing of this review will be? Whatever the reasons for its delay, can we look forward to when we might receive it?
Along with my comments about crossing the channel, I should have said that to talk about unfounded claims is rather close to talking about illegal asylum seekers. Asylum seekers are not illegal until their claim has been determined. The strength of feeling on this is very evident, but I have no option at this moment but to beg leave to withdraw the amendment.
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.
Baroness Hamwee (LD) [V]
My Lords, some years ago I chaired some work on the minimum income requirement affecting British people who, as has been said, never thought that they would be affected by their own country’s immigration laws.
The noble Baroness, Lady Bennett, mentioned someone from south Wales. I encountered someone from south Wales, David, whose second wife was a teacher from Canada—I do not think that you can get more respectable than being a teacher from Canada. By his first marriage he had a disabled daughter. Had he been able to bring his wife to the UK to share the care of his daughter, that, among other things, would have saved the state a lot of money. Instead, he had to limit the amount of work and the kind of work that he did and so did not meet the minimum income requirement. She was appallingly treated. I do not believe people in British society would support this, were they to know about it. Many do not until they are brought up against it personally. I have long thought that the answer to all this will be found only when a son or daughter of a Cabinet Minister finds himself or herself in this situation.
The focus at that time was largely on spouse visas and what can be taken into account in calculating incomes. That has been changed somewhat, but the issue remains. The rules about leave to enter for an individual’s parents are so harsh that they really amount to saying, “You need to be so much in need of care and support that you probably would not be fit to travel.”
The reality of this is striking home, as noble Lords have said. One of my noble friends received a letter, which she passed on to me at the weekend, from a UK citizen who has found herself in this situation. I shall read some short extracts: “As someone who married a non-UK EU national in the UK but then moved to his country to live as his parents were already elderly, never was it in my worst nightmares that I would not be able to do the same and I might be forced to choose between caring for him and caring for my mother. When I left, returning was always an option, as I work remotely, to be able to return to care for my parents. My parents are now on the brink of their eighth decade. My mother has lung issues. My father has prostate cancer. It is inevitable that I will want and need to return at some point. What child does not want to care for their parents themselves?”
She goes on: “I and many of the more than 1 million UK citizens living in the EU will not have that right. If we do not return before the end of 2022, our fate will become income-dependent. How is it conceivable that the British Government’s approach involves discrimination against its own citizens? Surely, the family is as sacrosanct in the UK as in the rest of Europe.” I am pleased, from our Benches, to support this amendment.
Lord Rosser (Lab)
My Lords, I declare a family interest in the issue raised by the amendment. As the noble Lord, Lord Flight, said, the wording in the Bill means that British citizens who moved to the EU or EEA while we were a member will lose their right to return to this country—their country of birth—with a non-British partner or children unless they can satisfy financial conditions that many may well find difficult or impossible to meet. Amendment 23, to which I am a signatory, seeks to address this situation.
I do not wish to repeat the points made by the noble Lord, Lord Flight, in moving this amendment. I agree with everything that he said. I hope that as well as responding to the arguments that he made, the Minister will also comment on his point that the change is, in effect, retrospective, since it is our country and our Government who are changing the rules that apply to our citizens on this issue. When they made their personal decisions to move to the EU or EEA, the rules, as they currently apply, may well have been a factor in making that decision; it is our Government who are now apparently seeking to change those rules.
No doubt the Minister, on behalf of the Government, will also comment on a further point made by the noble Lord, Lord Flight. He said that it appears that the new UK rules that will apply to British citizens in the situation that we are talking about will be much tougher in their terms than those that apply to EU citizens with settled status in respect of their ability to bring their dependants to join them in the UK. No doubt the Minister will confirm, in the Government’s reply, whether that is the case.
The Deputy Chairman of Committees (Baroness Pitkeathley) (Lab)
My Lords, I apologise, but I have just received a request to speak after the Minister from the noble Baroness, Lady Hamwee.
Baroness Hamwee (LD) [V]
My Lords, I simply ask the Minister what she would advise a couple, one British and one an EU national, who both have elderly parents. She is suggesting that they should pick between them for future care by the end of 2022. Is this really a humane approach?
Baroness Williams of Trafford (Con)
My Lords, I apologise for the slight discontinuity of speakers to the disbenefit of the noble Baroness, Lady Hamwee. Three years after we were supposed to leave the EU, and indeed some six years after this country voted to do so, we are giving people time. There are immigration rules in every country of the world, and we are trying to be as fair as possible. We have listened to the concerns of UK nationals living in both the EEA and Switzerland.
Baroness Lister of Burtersett (Lab)
My Lords, I rise to move Amendment 30 and to speak to Amendment 68. These probing amendments are about citizenship, and I am grateful to the Project for the Registration of Children as British Citizens—of which I am a patron—and Amnesty International UK for their help with them. I pay tribute to these organisations for all the work they have done to promote and protect children’s citizenship rights.
For technical reasons, the amendments relate solely to EEA and Swiss nationals, but the issues they raise echo concerns raised previously on a number of occasions in your Lordships’ House, particularly with regard to children’s citizenship rights.
Children born in this country to parents settled here, or who have grown up here from a young age, are entitled to register as British citizens. A combination of factors, including exorbitant fees, lack of awareness of the need to register their right to citizenship and the difficulties faced by local authorities in assisting looked-after children to exercise the right, have resulted in thousands of children being denied that right to British citizenship.
One consequence of our leaving the EU is that many more children could be in this position. They are the children of EU nationals who were born or who have grown up in the UK from an early age; the Home Office appears to have ignored this group. In establishing the EUSS, it has done nothing to raise awareness of their citizenship rights or to encourage children and young people with these rights to exercise them. Instead, because the EUSS is free, there is a real danger that many of them will be encouraged to secure themselves immigration status and not confirm or register themselves as British citizens, which they may not realise is open to them and involves a fee of £1,012.
In a High Court judgment in December last year—mentioned in the debate on an earlier amendment—that fee was deemed unlawful, as it was set without having regard to the best interests of the child. That decision is being appealed, but its reasoning is highly pertinent. In particular, it underlined the importance of citizenship.
In response to a similar set of amendments in the Commons Committee stage, the Immigration Minister argued that any child looked after by their local authority can apply for limited and indefinite leave to remain without having to pay a fee, and that citizenship itself
“is not essential for any individual to work, live, study or access services in the UK.”
When he was urged not to pursue that line of argument by Stuart McDonald MP, he re-emphasised that citizenship
“is not something that people need in order to access services.”—[Official Report, Commons, Immigration and Social Security Co-ordination (EU Withdrawal) Bill Committee, 16/6/20; cols. 208-09.]
Does the Conservative Party really believe in such a transactional view of the significance of citizenship? In contrast, in 1981, during the passage of the British Nationality Act, which conferred the right to register as a citizen, it was emphasised that this was in part to ensure that the children concerned should have
“as strong a sense of security as possible”.
Citizenship is about security, belonging, inclusion, integration and identity. Indeed, the High Court judgment cited the Secretary of State’s own guidance document, which states that:
“Becoming a British citizen is a significant life event. Apart from allowing a child to apply for a British citizen passport, British citizenship gives them the opportunity to participate more fully in the life of their local community as they grow up.”
As noted on the earlier amendment, the High Court judgment referred to a “mass of evidence” that the inability to exercise their right to register as citizens because of the fee causes many children born in the UK to
“feel alienated, excluded, isolated, second best, insecure and not fully assimilated into the culture and social fabric of the UK.”
Is this really what the Government want? Do we want many more children to feel this way in future? This false equation of immigration status with citizenship was one factor in the Windrush scandal. Please do not let us repeat it.
Amendment 30 addresses the impact of the fee level on registration. In her Windrush Lessons Learned Review, Wendy Williams notes that
“there’s little evidence that the impact on people was effectively considered”
when fees were increased significantly. Amendment 68 specifies that the level should not exceed the administrative cost, which according to the Home Office is currently £372—£640 less than the fee charged. The Home Office’s argument that such a mark-up on the fee is justified because it provides a “benefit” and because the Home Office needs the money to run a sustainable immigration and citizenship system—repeated by the Minister at Second Reading—is specious because we are talking about a citizenship right bestowed by Parliament, not a discretionary immigration status.
Amendment 68 also excludes from the fee any child who has been looked after by a local authority—a particularly marginalised group of children. There is no logic to local authorities having to pay these fees on behalf of these children as it simply involves a transfer of resources from local to central government. I believe some other noble Lords might say more about this. It also requires the Secretary of State to take steps to raise awareness of the right to register as a British citizen but I will not say more about that now as it is the main focus of Amendment 67, which will be debated on a later day.
Because of the restrictions created by the Bill’s Long Title, these are simply probing amendments. However, as I am sure the Minister realises, the more general question of the barriers to registering the right to British citizenship, particularly the level of the fee, is one that we will return to in this House time and again. Given the Home Office’s welcome readiness to accept the recommendations of the Windrush Lessons Learned Review, and the dangers of now repeating some of the flaws it revealed, will it now think again? As a first step, will the Minister, on behalf of the Home Office, undertake to look again at the level of the fee, which even Sajid Javid, when Home Secretary, admitted was “huge”? I beg to move.
Baroness Hamwee (LD) [V]
My Lords, the noble Baroness, Lady Lister, has been terrier-like in her pursuit of these issues. I, like the whole House, am grateful to her for that and I too thank the organisations she mentioned.
The fees are to exercise a right, but a right is no use if you cannot exercise it. The fees are a deterrent. They are a deterrent if you think that you are in a sufficiently secure position and do not understand the distinction between immigration status and citizenship. They are a deterrent if you are told by the Government that you are in secure position through the European Union settled status scheme. They are obviously a deterrent if you cannot afford them. I will not be the only Member of the Committee who has heard distressing stories of families who have realised that they cannot afford to pay for the citizenship registration of all family members and have selected some. If there is a mother with four children—well, we can all do the maths.
The noble Baroness used words, which I have written down, that are about more than security; they are about a sense of belonging. Otherwise, over the years why would so many people have chosen to become citizens through a sometimes pretty laborious route, having to take tests about things that would probably be mysteries to many of us and culminating in citizenship ceremonies? I have been to one. The ceremony is an important part of the whole process—the recognition of that belonging.
Everyone understands that there are administrative costs to these things, but the current fees far exceed the costs. There is a surplus—I use that term rather than “profit”, because I understand that the Minister protests at the term “profit”—in the order of £600, as I understand it, and £800 in the case of adults, where the fees are something like £1,200. The Home Office talks about this surplus being justified because of the benefit, but I do not understand the logic of citizenship being a benefit if indefinite leave to remain is an equivalent, or at least sufficient to meet all the attributes of citizenship, as seems to be argued by the Home Office.
The noble Baroness mentioned the Windrush scandal, and I am sure the Home Office must be anxious not to get into a similar situation. It has said that all Wendy Williams’s recommendations are accepted. About three of those are about meaningful engagement with stakeholders and communities and the use of research. If the Home Office were to engage on this topic and undertake research, I think it would understand how very fully these issues play with the people affected. In any event, as has been said, citizenship is about rights—the right to citizenship of the children referred to—and we should not put blocks in the way of rights.
Baroness Altmann (Con)
My Lords, I thank the noble Baroness, Lady Lister, for the excellent way in which she introduced these two amendments. I have added my name to Amendment 30, but I support Amendment 68 as well. I echo her words and those of the noble Baroness, Lady Hamwee, in thanking the Project for the Registration of Children as British Citizens and Amnesty International UK for their helpful briefings.
I will not detain the Committee long, but I emphasise and urge my noble friend to consider that, as the two noble Baronesses said, this is about not a benefit but a statutory right to give someone the security of UK citizenship. If the cost of the administration is £372 according to the Home Office, it seems difficult to understand why three times that amount—a 200% mark- up—is applied to those trying to exercise their rights. It should not be a business transaction; that should not be any part of this equation.
During the passage of the British Nationality Act 1981, it was said that Parliament intended that all children growing up in the UK with that connection
“should have as strong a sense of security as possible.”—[Official Report, Commons, 24/2/81; col. 177.]
Charging more than £1,000 will clearly be prohibitive. As both noble Baronesses who have spoken said, the High Court found in 2019 that unaffordability meant that children who were born here—who feel British—feel alienated. Have we not learned from the Windrush generation that people should not be excluded from their citizenship rights? Indeed, on the question of Windrush, this could be a near exact repeat of what happened. In the 1980s, Parliament gave people the right to register as British citizens, but apparently they were discouraged from exercising that right. Just as it wrongly told the Windrush generation that immigration status was the same as having citizenship, I hope that today the Home Office will not repeat the mistaken claim that British people do not need British citizenship and are adequately provided for by applying for a different immigration status. These are lessons that were highlighted in the report of the Windrush Lessons Learned Review and I hope that we will take them seriously. I support these probing amendments and hope that my noble friend will be able to address them before Report.
The Deputy Chairman of Committees (Baroness Henig) (Lab)
I have received a request to speak after the Minister from the noble Baroness, Lady Hamwee.
Baroness Hamwee (LD) [V]
The Minister talked about the service being far from making a profit, yet we have heard from the Government on previous occasions about the surplus that is achieved from individual payments and fees. Will she write to noble Lords after today’s debate explaining in only as little detail as is required what the finances of this service are in order to square those two statements?
Baroness Williams of Trafford (Con)
I could go through them tonight, but I think the Committee is probably getting quite weary, as is the noble Baroness, Lady Hamwee, so I will write and explain.
Baroness Hamwee
“( ) Regulations under subsection (1) may not limit or remove the right to vote in local government elections of persons who lose rights under section 1 unless the Secretary of State has laid before each House of Parliament a draft of the proposed regulations and an assessment of their effect on the right to vote, at least three months before a statutory instrument containing the regulations is to be made.”Member’s explanatory statement
This amendment would require the Government to allow Parliament the opportunity to consider proposals for restricting the right to vote in local elections of EU citizens.
Baroness Hamwee (LD) (V)
My Lords, currently EU citizens—not citizens of Switzerland or the wider EFTA—may stand and vote in local elections. This is a right under UK law. You would think that they would feel secure for the future in this, knowing that an Act of Parliament would be required if the right were to be withdrawn, coupled with the promise made by the Vote Leave campaign that EU citizens would be treated no less favourably than at present. However, under Clause 4, which we have debated almost into the ground, there could be secondary legislation to amend the primary legislation.
Over the summer, my noble friend Lord Tyler asked a Written Question about the local elections that were postponed from May 2020 to May 2021. When I say “local”, I include police and crime commissioners and the Greater London Authority. The noble Lord, Lord True—the Cabinet Office Minister—confirmed that the right would apply next May; this regards England because the franchise for local elections is devolved. That is logical because the elections should have been last May. In any event, they will take place during a period when applications to the EU settled status scheme are still open.
I understand that the Government are dealing with local voting rights on a country-by-country basis, regarding this as a reciprocal matter. My list may be out of date, but I believe that they have signed bilateral voting rights agreements with Spain, Portugal, Luxemburg and Poland. Scotland and Wales have already passed the necessary legislation for beyond 2021.
The right to vote and stand is important. It is a matter of social cohesion. I will not be the only Member of the House who has had a conversation about this on the doorstep during election campaigns—at all levels of elections—where I have encountered citizens of various countries. Sometimes, I have urged them to campaign and assured them they can vote in a local election; on other occasions, I have listened to their complaints that they cannot vote. Nor will I be the only Member who has stood on a doorstep and talked about the importance of voting as a member of one’s community to have views represented on how services are run, to exercise the right as a taxpayer and service user, and to show one’s priorities for policy and spending. Today, we have talked a good deal about belonging. The right to vote and the right to stand are both issues of belonging. I beg to move.
Lord Parkinson of Whitley Bay (Con)
My Lords, I thank the noble Baroness, Lady Hamwee, for moving Amendment 33 and the noble Lords, Lord Judd, Lord Tyler and Lord Rosser, for their contributions to this short but important debate. While I understand the sentiment that underpins the noble Baroness’s amendment and some of the speeches we have heard, I do not think it necessary to add this to the Bill.
As noble Lords will be aware, the Government have already shared the draft illustrative regulations proposed under Clause 4(1). As I hope and am sure noble Lords will have seen, they do not include any provisions relating to the voting rights of EU citizens; nor has there been any immediate change to the entitlement of EU citizens resident here to vote in local elections. Indeed—as the noble Baroness, Lady Hamwee, said—in an Answer to a Question posed by the noble Lord, Lord Tyler, and answered by my noble friend Lord True, the Government recently confirmed that EU citizens resident in England
“will remain able to vote”
in the elections in England next May. That includes not only elections to a number of local authorities at every level but elections for the Mayor of London and the Greater London Assembly and combined authority mayors in the West Midlands, Greater Manchester, Liverpool City Region, the Tees Valley, Cambridgeshire and Peterborough, the West of England and West Yorkshire, as well as for the police and crime commissioner elections in England and Wales on the same day. It also applies to the right of EU citizens to stand in those elections, and anyone elected
“will be able to serve their full term”.
I hope that removes the uncertainty the noble Lord, Lord Rosser, mentioned, in the short term at least. I take the opportunity to pay tribute to EU citizens who have served their local community in public office, whatever party or affiliation they have done that under.
I am afraid I have no update for the noble Lord, Lord Tyler, beyond the Answer by my noble friend Lord True, which he read out in full. As that pointed out, we have taken positive steps in our relationship with EU member states and signed bilateral voting agreements with Spain, Portugal and Luxembourg in 2019; the one signed with Poland in May this year remains the most recent.
This is really a debate more about parliamentary scrutiny. On that issue, which the noble Baroness’s amendment considers and which the noble Lord, Lord Judd, also mentioned, the Bill as drafted makes clear that any primary legislation amended by regulations provided for by Clause 4 would be subject to the affirmative procedure and would have to be approved by both Houses of Parliament. I have no doubt that in the course of any such debates, noble Lords—including those who have spoken tonight—as well as Members in another place, will want to give such regulations their fullest scrutiny. As such, we do not think this amendment is needed.
Baroness Hamwee (LD) [V]
The compliments paid to me made me blush, but I probably was not on screen when I was blushing. Anyway, I thank noble Lords for those.
I live in the constituency of Richmond Park in the London Borough of Richmond upon Thames. We have Swedish and German schools here and a lot of French citizens. The point about the large number of French people in London is quite right. Those citizens are very much members of the local community. I absolutely agree with my noble friend that the best way to achieve rights for British citizens abroad is for us to be open and generous with rights in the UK. That is not only the proper thing to do but a good way of negotiating.
My noble friend also mentioned limitations set out in the Written Answer from the noble Lord, Lord True, which referred to the London Assembly. I take from the response just now by the noble Lord, Lord Parkinson, that it should have been the Greater London Authority, which consists of the mayor and the London Assembly. I think I can see the noble Baroness, Lady Jones, in the Chamber; I thank her for the wave. Like me, she will know that the terminology—the nomenclature, perhaps —of the various parts of the GLA is something that few people get their heads around.
More seriously, perhaps, I think the Minister said that this was not necessarily one for the Bill, and prayed in aid the draft illustrative statutory instrument that has been sent to noble Lords. That seems to me to be a circular argument. Where else should we raise the issue but on this Bill? We are told that we could raise the point when we scrutinise draft regulations that are laid under Clause 4—but we cannot introduce regulations. I really think he has set us an impossible task.
I am sorry that the issue has been dismissed in the way that it has; that is very sad. As I said, I would like us to be open and generous on this point. Clearly there is no more that I can do tonight other than express that. I beg leave to withdraw Amendment 33.
Baroness Hamwee
“Time limit on immigration detention for EEA and Swiss nationals
(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 (SI 2016/1052); (b) residing in the United Kingdom in accordance with a right conferred by or under any of the other instruments which is 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 (saving for rights etc. under section 2(1) of the ECA), to be recognised and available in domestic law after exit day.(2) The Secretary of State may not detain P under a relevant detention power for a period of more than 28 days from the relevant time.(3) If P remains detained under a relevant detention power at the expiry of the period of 28 days then—(a) the Secretary of State must release P forthwith; and(b) the Secretary of State may not re-detain P under a relevant detention power thereafter, unless the Secretary of State is satisfied that there has been a material change of circumstances since P’s release and that the criteria in section (Initial detention: criteria and duration) are met.(4) In this Act, “relevant detention power” means a power to detain under—(a) paragraph 16(2) of Schedule 2 to the Immigration Act 1971 (detention of persons liable to examination or removal);(b) paragraph 2(1), (2) or (3) of Schedule 3 to that Act (detention pending deportation);(c) section 62 of the Nationality, Immigration and Asylum Act 2002 (detention of persons liable to examination or removal); or(d) section 36(1) of the UK Borders Act 2007 (detention pending deportation).(5) In this Act, “relevant time” means the time at which P is first detained under a relevant detention power.(6) This section does not apply to a person in respect of whom the Secretary of State has certified that the decision to detain is or was taken in the interests of national security.”Member’s explanatory statement
This new Clause places a limit on the length of time EEA or Swiss nationals may be held in immigration detention of 28 days.
Baroness Hamwee (LD) [V]
This is the first of many new clauses which noble Lords have tabled to become part of the Bill after Clause 4. I am moving Amendment 39, which is part of a package with Amendments 40, 41 and 94; all four should be read together. Also in this group is Amendment 70 in the name of the noble Lord, Lord Ramsbotham, and in my name, which raises important aspects of detention.
As with other amendments, because the Bill relates to EEA and Swiss citizens, the amendments themselves are necessarily limited. It may seem unlikely that issues around detention will arise in their case but, as I said on an earlier amendment, it is not impossible that asylum will be sought in the UK from harsh regimes in some EU states. I mentioned Hungary and Poland, which are moving politically, and my noble friend Lord Paddick dealt with the attempted dismissal of that notice.
Immigration and Social Security Co-ordination (EU Withdrawal) Bill
Baroness Hamwee ExcerptsMonday 7th September 2020
(4 years, 2 months ago)
Lords ChamberRead Full debate Immigration and Social Security Co-ordination (EU Withdrawal) Act 2020 View all Immigration and Social Security Co-ordination (EU Withdrawal) Act 2020 Debates Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: HL Bill 121-II(Rev) Revised second marshalled list for Committee - (7 Sep 2020)
Baroness Hamwee (LD) [V]
My Lords, we on these Benches—I am on them virtually—make no bones about how much we oppose the ending of free movement. That includes both welcoming EEA citizens—the collective term which includes the Swiss for this purpose—and their families to live and work in the UK, and the equal and opposite right for British citizens in the EU. For myself, it offends my politics, my emotions, my values, my logic and, you might say, my whole outlook on life. However, I will endeavour to keep my remarks within the scope of the Bill and not to seek to reopen what has irreversibly been decided—although “irreversible” may have gained a new definition overnight—nor do I want to make a Second Reading speech.
What is relevant is that the Bill does not set out what will be in place of the current arrangements. Like the noble Lord, Lord Adonis, I am with the noble Baroness, Lady Neville-Rolfe, regarding the importance of the integrity of the system. We might want different systems, but what we have should be robust.
The noble Baroness and the noble Lord spoke in terms of enforcement—a term used in the amendment. I prefer to talk in more inclusive rather than exclusive terms. She talked about so many of the issues that we are addressing now, or failing to address. One must use the opportunity to say that the best way to address them is to create safe and legal routes to the UK. I do not want to divert on to the wider question of those who seek sanctuary, but I have to disagree with her approach and some of the language that she used.
By no means all of the new, much-heralded immigration system which will apply to EU citizens is yet in the public domain. The noble Lord, Lord Adonis, referred to UK citizens in the EU; he may see that Amendment 23, which we will come to later, may give us more of an opportunity to discuss their position. When the system is in the public domain, however, we will not be able to rely on it in the same way as we can rely on primary legislation because of the flexibility—would that be a polite word?—provided by the Bill. So much of our system is contained in rules which Parliament cannot realistically amend, and indeed often it takes an awful lot of background knowledge and experience, application and concentration to understand those rules. It is no wonder that the Government had some years ago to require a particular level of expertise to advise on immigration. The rules are difficult for most of us—other noble Lords may say that they waltz through them with no difficulty; I do not—and they are often impenetrable to those directly affected. I have too often heard Ministers say, “It is on GOV.UK.” That is not everyone’s bedtime reading. Indeed, however detailed the rules and however much they flesh out the Bill, it remains a skeleton.
My noble friend Lady Ludford and I have three amendments in this group, all to Schedule 1. The noble Lord, Lord Pannick, referred to the coy but comatose draftsman—I may use that term on other occasions—and my noble friend Lord Beith asked an important question about what instructions had been given to the draftsmen and draftswomen. After all, the responsibility lies with Ministers.
Amendments 4 and 5 take out some of the most offensive words in Schedule 1, which I do not think I need to read into the record again, as others have referred to them. They are wide and imprecise; there are references to “application or operation of” provisions, and
“otherwise capable of affecting the exercise of functions in connection with immigration.”
If any of your Lordships on Opposition Benches were to produce amendments using that sort of terminology, we would quite rapidly be shot down, and rightly so, by the Government Front Bench.
A lot of functions are connected with immigration, and we will come on later to employment, renting property —the rest of the hostile environment. There are also all sorts of functions which I would accept are necessary but which I would not want brought within the repeal of
“rights, powers, liabilities, obligations, restrictions, remedies and procedures”,
to which Section 1 applies.
Amendment 6 in our names would add words to the schedule by not applying it to rights which do not arise under an EU directive. Directives which do not relate to immigration include, in our view: the protection for victims of trafficking in the anti-trafficking directive—there is an amendment specifically on that—the protection for asylum seekers in the reception conditions directive 2013/33, and the protection for victims of crime in the EU victims’ rights directive 2012/29. We do not suggest that we believe that these protections are at risk, but we do not know. If the Bill remains as it is when it becomes an Act, the only way to know for certain is to test the matter in the courts. The noble Baroness, Lady Neville-Rolfe, was critical in the context of removals from this country of applications to the courts. However, that is what they are there for, and they are applying law that has been made by Parliament, or by Ministers subject to the rather inadequate scrutiny that parliamentarians are able to give them.
On Amendment 6—this is something that has been identified by the Immigration Law Practitioners’ Association; the noble Lord, Lord Pannick, mentioned the comments on the Bill by its chair, Adrian Berry—the protections are potentially at risk as what the association describes as “collateral damage”. We hope that they do not fall within the scope of the Bill, but I think it is a matter for the Government to explain what the position is. This is all about the lack of clarity, the bad rule-making, to which other noble Lords have referred, all offensive to the rule of law.
To return to the first amendment in this group, I welcome reports to Parliament and parliamentary scrutiny. I am hesitant to criticise or comment on the wording of the clause, having learned from the noble Baroness that the clerks were involved in crafting it, but I am not sure that the provisions of Schedule 1 are correctly described as enforceable. A provision within six months would take us beyond the end of the year. However, I should not carp about that sort of detail because, whatever the language, I understand that the supporters of Amendment 1 are seeking to ensure that free movement ends and that Parliament is told how. We have made our views about the first part of that very clear.
Before I finish, I want to mention the amendment by the noble Baroness, Lady Prashar. I thought the points made by noble Lords were very telling regarding the reference to soft power. I was reminded of listening to the European Union Youth Orchestra a couple of years ago in Edinburgh. That was a very special experience and it rather goes to why we are so distressed by what we are having to go along with in the Bill.
I think I have said enough not to have to refer specifically to our opposition to Amendment 1.
Lord Rosser (Lab)
My Lords, this group of amendments seeks to address the issue of the lack of clarity in the Bill, not least in Schedule 1. I am sure we have reached the stage now where noble Lords want to hear the Government’s response. I wish to comment briefly on three of the amendments in this group, although all of them raise issues of significance, as my noble friend Lord Adonis has said. That has become clear from noble Lords’ contributions, even though noble Lords have not all been coming from the same direction.
Three days ago, we were sent a letter from the Government sharing illustrative drafts of regulations that they propose to make under the powers in Clause 4 of the Bill. One wonders why at least some of the terms of these draft regulations could not now be or already have been incorporated in the Bill and thus be open to proper parliamentary scrutiny.
Schedule 1 revokes Article 1 of the EU workers regulation, which provides freedom-of-movement rights. Paragraph 4(2) of that schedule provides that other parts of the workers regulation cease to apply so far as they are
“inconsistent with any provision made by or under the Immigration Acts”
or
“capable of affecting the interpretation, application or operation of any such provision”.
This is a very broad drafting. Amendment 3, to which the noble Lord, Lord Pannick, spoke with his usual considerable authority, would remove paragraph 4(2), as it is so broad and lacks clarity. We share the concern that that amendment seeks to address.
No doubt the Minister, in giving the Government’s reply, will be giving a pretty comprehensive list of examples of how and why, in the Government’s view, other parts of the workers regulation might credibly become, first, inconsistent with provisions made by the Immigration Acts and, secondly, capable of affecting provisions made by or under the Immigration Acts.
Baroness Hamwee (LD) [V]
My Lords, my noble friend Lady Brinton has her name to the amendment moved by the noble Lord, Lord Hunt, which we support. My noble friend is indisposed at present, but I know that she will be here in spirit. I start by saying to the Minister that I will try not to moan. I generally try not to moan. It is reasonable for her to refer a Member of the House to GOV.UK; my point was that most of the public would be bemused by the reference. I think I can see on my screen that she is nodding.
There was enthusiasm for tabling amendments quickly after Second Reading, especially on what were particularly topical issues. A health and social care visa was one such. It remains topical, as does the whole operation of the social care sector, even though it is not in the headlines quite so much. I have spoken about immigration arrangements being in the rules. The scheme set out in our Amendment 47 may not be ideal—I confess I do not think it is—but it is about pinning down the arrangements into primary legislation to make them not too easy to amend.
My noble friend Lady Brinton and I also have our names to Amendment 57, on a social care visa. Many of your Lordships will have direct experience of the work of those in social care and share what the noble Lord, Lord Hunt, has talked of—the importance of proper payment reflecting the level of skill, which is very significant. As it happens, I cannot praise too much someone who recently cared for a close relative. She came from Romania.
The essential core skills are not ones that can be trained into anyone; there are the practical, technical aspects of care, but you cannot train someone to care as part of their personality. They either have it or they do not. That is why so many carers, little supported, are people who look after their spouses, children or parents at home. I mention this because, last time I mentioned care at home, the Minister thought I meant domiciliary care. That is part of the subject matter of the amendment, but I depart from the scope of the Bill for a moment to recognise the dedication and sheer hard work that family members undertake, which is inadequately recognised. Other noble Lords in the debate may know how much, in pounds and pence, that work saves the state.
The noble Baroness, Lady Masham, will explain the importance of her proposal in Amendment 66. I simply say that my noble friend Lady Thomas of Winchester added her name to that amendment, and she is very sorry that she cannot take part in today’s proceedings.
Also in the group is Amendment 82 of the noble Lord, Lord Patel, which I thought was interesting. Some of us leap in; calmer heads propose an analysis of the issue. I suspect that will not preclude some pithy points in support of progressing with analysis.
Baroness Masham of Ilton (CB) [V]
My Lords, Amendment 66 would provide for the creation of a fast-track health and social care visa for EEA and Swiss nationals who provide personal care for severely disabled people, after the end of free movement. The visa would be limited to EEA and Swiss nationals who, immediately prior to the commencement of Clause 1 and Schedule 1, had the right of free movement into the UK.
Subsection (1) of my proposed new clause says:
“The Secretary of State must provide by regulations made by statutory instrument for the introduction of a fast-track health and social care visa for a relevant person who provides personal care for severely disabled people in the United Kingdom.”
Subsection (2) defines “fast-track” and “relevant person”:
“In this section, ‘fast-track’ means processed by UK Visas and Immigration within three weeks from the day on which the applicant provides their biometric information, and ‘relevant person’ means an EEA or Swiss national who immediately prior to the commencement of section 1 and Schedule 1 had the right of free movement into the United Kingdom.”
The proposed new clause would provide for the introduction of a fast-track health and social care visa for a person who provides personal care for severely disabled people. The visa would be limited to EEA or Swiss nationals who, immediately prior to the commencement of Clause 1 and Schedule 1, had the right of free movement into the UK. This is a probing amendment to see what consideration the Government have given to extending their new health and social care visa to persons who provide personal care for severely disabled people in the United Kingdom.
In July, the Home Secretary and Secretary of State for Health and Social Care announced that a
“new Health and Care Visa will be launched this Summer, creating a new fast-track visa route for eligible health and care professionals and delivering on a key manifesto commitment.”
However, the Government have been criticised for excluding care workers from being able to apply for visas designed to fast-track those coming to the UK to work in the health and care sector.
On 13 July, the Home Office released details of the UK points-based immigration system, which will come into effect from 1 January 2021. Under the new system, the health and care visa will allow people working in eligible occupations, who speak English and have a job offer, to come to the UK. Under this visa route, workers and their families will gain fast-track entry to the UK, with reduced application fees and dedicated support, the Government said. Those who are eligible to apply and their dependants will also be exempt from paying the immigration health surcharge—a move that has been welcomed by doctors. But applicants must meet a salary threshold of £25,600, which is €28,200 or $32,000, to be eligible to apply for the visa, unless they are entering a shortage occupation, such as nursing and medicine. The NHS workers’ union, GMB, said that this threshold would mean that many NHS cleaners, porters and support staff will not qualify for the visa.
The Government have faced a backlash because social care workers are not eligible to apply for the visa, although the Migration Advisory Committee, on whose advice much of the new system is based, recognised the workforce shortage faced by social care in its most recent report and did not recommend that care workers be added to the list of shortage occupations. I cannot understand this. Perhaps the Government can tell us why. Instead, the committee said that it hoped the Government’s forthcoming Green Paper on social care would provide more clarity on the future of the sector in the UK and contain concrete proposals to improve terms and conditions for care workers. Waiting is not acceptable. There is a crisis.
Critics have said that the exclusion of care home staff from a post-Brexit, fast-track visa system for health workers could prove to be an unmitigated disaster and may increase the risk of spreading coronavirus. Professor Martin Green, the chief executive of Care England, which represents the largest private providers, has said that the decision amid the pandemic in which 20,000 people have died in UK care homes has the potential to destabilise the sector even further, with disastrous consequences, confirming that there could be no special treatment for carers coming to the UK from the rest of the world.
The Government have said that they hope that Britons will fill the shortfall of around 20,000 workers, equating to 10% of all posts. Currently, 17% of care jobs are filled by foreign citizens. In the debate on Second Reading, I drew attention to this when I said:
“There is a danger that people who cannot get work of their choice are pushed into doing care work, with such horrifying results as happened at Whorlton Hall near Barnard Castle, Thors Park in Essex and Winterbourne View near Bristol, where patients were abused and bullied. This cruelty was exposed by ‘Panorama’. We must surely try to prevent this sort of thing happening again. I hope the Government will listen before it is too late.” —[Official Report, 22/7/20; col. 2251.]
The health and care visa has been designed to attract the brightest and best from around the world. It has been criticised for excluding front-line care home workers and contractors. It has been pointed out that the minimum salary threshold means that many cleaners, porters and other support staff will not qualify. This will discriminate against severely disabled people living in their own home who need paid carers. The Government are discriminating against any care workers.
Vic Rayner, the executive director of the National Care Forum, has said that in London, where around 38% of care workers are non-British, the policy could be “an unmitigated disaster.” She said:
“‘We have 122,000 vacancies, growing demand for our services, and then the tap is turned off like this … It is not good news at all. What you need for good care is a stable, skilled and plentiful workforce. And in the context of Covid-19, where you are trying to minimise movement of staff, any shortages might increase movement of staff and use of agency staff, which we are trying to avoid.’”
Robin Hall, the secretary of the Hampshire Care Association, has said that a shallower pool from which to recruit could drive up wages, which, without greater public funding, would mean fewer staff employed per resident. She said:
“‘That will damage the quality of care we can deliver … You also may have to get less choosy about who you employ, and that’s a dreadful thought. A lot of our EU staff are highly skilled. They are smart, articulate and speak three or four languages. We don’t get that quality of applicants from the UK because of the status the profession has.’”
With the advances in medical treatment made over the years, many severely disabled people are living in the community in their own home. Many of them need live-in or daily carers. We also have an increasing elderly population. A bright young man called David who broke his neck in a rugby accident and was paralysed from the neck down had been cared for by his mother. As she got older, her arthritis became worse. David was fearful that he might end up in a care home, which was something he could not accept. David lived in a comfortable bungalow with a garden and a lily pond. One day he was found drowned in that pond. In desperation, he had driven his electric wheelchair into it to end his life. Surely we do not want more cases like that.
Good care workers who work in people’s homes must be dedicated to the job, get satisfaction from it, be honest, skilled, compassionate and flexible. Caring for severely disabled people is not for everyone, but those who undertake these positions are special and they should be valued, not treated as “also rans”.
I look forward to hearing the Minister’s comments on Amendment 66, and I hope that it will be taken seriously.
Baroness Hamwee (LD) [V]
My Lords, this afternoon my noble friend Lord Newby, speaking on a business Motion, made the point that Private Members’ Bills should come back on to our Order Paper. This would certainly be a candidate for that. I referred to this directive when I spoke to my Amendment 6 earlier today. We have heard long, careful and impassioned speeches from previous speakers, so I do not intend to say a great deal, but that should not be taken to be any indication that I do not feel strongly about these issues.
The amendment moved by the noble Lord, Lord McColl, is about how the support that we would all want to see for victims of trafficking is given. The Modern Slavery Act is only five years old, but thinking has moved on since then. Knowledge and understanding have moved on. We need to continue to develop and refine the support that is made available and recognise it as a right beyond guidance. It is a moral duty and it needs to be made certain in law. It does not require much imagination to understand that the need for protection varies from victim to victim, but it is likely to have to be long and intensive and, as we have debated in other contexts, certainty is an important component of recovery. I support this amendment very warmly.
Lord Kennedy of Southwark (Lab Co-op)
My Lords, I am delighted to support amendment moved by the noble Lord, Lord McColl of Dulwich, and I pay tribute to his tireless work in this area over many years and I wish him success in the future. I am sure he will be successful. I hope we will shortly hear a positive reply from the noble Lord, Lord Parkinson of Whitley Bay, confirming that the EU anti-trafficking directive will still apply and that the Government will go further. As the noble Lord, Lord McColl, told us, leaving the EU does not compel us to offer less protection and less support to victims of modern slavery and trafficking.
I am also aware that in March, only a few months ago, the Government said that at the end of the transition period the UK will no longer be bound by the trafficking directive but they have not set out plans to retain or incorporate any of the directive into UK law. That is a worrying and alarming position. I will go further and suggest that it is hugely damaging to our reputation abroad. The UK has a reputation of being a safe haven for people fleeing persecution and for people in distress. We have a reputation as a compassionate country that deals with victims of abuse, trafficking and slavery justly, fairly and properly, but there have been too many occasions when this Government have shown a cruel, uncaring streak which I would not expect from a Government of the UK. The noble Lord, Lord Parkinson of Whitley Bay, can take up the challenge of the noble Lord, Lord McColl of Dulwich, and provide the Committee with the reassurance for which it is asking. At a minimum, we need to hear from the Government that they will put in place legislation that ensures that no matter what else happens as a result of Brexit, victims will be no worse off and will have no fewer rights than they have at present. In many areas they need to have more rights and to be treated with more compassion.
We also need to have on the record from the noble Lord, Lord Parkinson of Whitley Bay, the effect as he sees it of paragraph 6 of Schedule 1 on the position of victims of trafficking and their current protections. I support the call from the noble Lord, Lord Morrow, for at least a commitment from the Government not to use these powers to erode the rights and protections of victims.
I have in the past supported, and will continue to do so until he is successful, the noble Lord, Lord McColl, in his entirely correct campaign to speak up for the victims of modern slavery and afford them the same protections in England and Wales that legislation in both Northern Ireland and Scotland provides. The noble Lord, Lord Morrow, should be congratulated for taking the equivalent legislation through the Northern Ireland Assembly. It offers more protections that I, the noble Lord, Lord McColl, and other Members of this House want to see applied to England and Wales.
I support the call from the noble Baroness, Lady Hamwee, for Private Members’ Bills to come back on the business agenda, and for me the Private Member’s Bill from the noble Lord, Lord McColl, should be top of the pile. It is a matter of great regret that the Government have not been prepared to support the noble Lord’s Bill. It is passed by this House and then crashes on the rocks in the other place, not even getting to the point of being discussed. That is a matter of much regret. The Government could in future agree to support the Bill and give it government time or, even better, announce maybe today or later that they will table a government amendment to appropriate legislation to ensure that the protections victims have in Scotland and Northern Ireland in terms of further care from the state will now be afforded to them in England in Wales.
Other than that, the Modern Slavery Act is a very good Act. Lots of good work was done by the former Prime Minister, when she was Home Secretary, to get it; she made a personal commitment to do that. My noble friend Lady Kennedy of Cradley served on the joint Bill committee to look at the legislation—I know lots of good work went on—but there is one area of further protections that the law is missing, and we should do more in that regard. For that reason, I very much support the call of the noble Lord, Lord McColl. I look forward to the noble Lord’s response to this debate.
Baroness Hamwee
“(6) The Secretary of State may not conclude that the deportation of an Irish citizen is conducive to the public good under section 3(5)(a) unless he or she concludes that, due to the exceptional circumstances of the case, the public interest requires deportation.(7) No person of any nationality is liable for deportation under section 3(5)(b) on the ground that they belong to the family of an Irish citizen who is or has been ordered to be deported, unless subsection (3)(a) is satisfied in respect of that Irish citizen.(8) An Irish citizen may not be deported or excluded from the United Kingdom if—(a) the Irish citizen was born in Northern Ireland; and(b) at the time of the Irish citizen’s birth, at least one of his or her parents was—(i) a British citizen; or(ii) an Irish citizen; or(iii) a British citizen and an Irish citizen; or(iv) otherwise entitled to reside in Northern Ireland without any restriction on their period of residence.”Member’s explanatory statement
This amendment protects the threshold for deportation of Irish citizens and ensures that no-one born in Northern Ireland may be deported.
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 Williams of Trafford (Con)
I thank all noble Lords who have spoken to these amendments. As the noble Lord, Lord Kennedy, says, I often speak as first-generation Irish and he speaks as second-generation Irish, so I think one could say that we have a personal interest in getting this right and reiterating those rights in the Bill. Both the UK and Irish Governments have committed to maintaining the common travel area, which I will now call the CTA. It is underpinned by deep-rooted, historical ties and, crucially, predates our membership of the European Union.
It has been agreed with the EU that the UK and Ireland can continue to make arrangements between themselves when it comes to the CTA. This means that we will continue to allow British and Irish citizens to travel freely between the UK and Ireland and reside in either jurisdiction, and commit to protecting a number of wider rights and privileges associated with the CTA. These include the ability to work, study and access healthcare and public services. Both Governments confirmed that position on 8 May last year, through signing a CTA memorandum of understanding, referred to by the noble Baroness, Lady Ludford. The Government has included Clause 2 in the Bill to ensure that Irish citizens can enter and remain in the UK, without requiring permission, regardless of where they have travelled from, except in a limited number of circumstances.
Amendment 58 also seeks to require the Government to publish details of the rights and benefits provided by the EU settlement scheme. The European Union (Withdrawal Agreement) Act 2020 protects the residence rights of EEA citizens and their family members for those individuals who are resident in the UK before the end of the transition period and for eligible family members seeking to join a relevant EEA citizen in the UK after that time. By applying for UK immigration status under the EU settlement scheme, they can also continue to work, study and, where eligible, access benefits and services, such as free NHS treatment, as they do now.
While Irish citizens resident in the UK by 31 December 2020 can apply to the EU settlement scheme if they want, they do not need to. Their eligible family members can apply to the scheme, whether or not the Irish citizen has done so. However, Irish citizens resident in the UK by 31 December this year may wish to apply to the scheme to make it easier to prove their status in the UK in the event that they wish to bring eligible family members to the UK in the future.
The Government have therefore already made it clear that both the CTA and the EU settlement scheme provide Irish citizens with a number of rights following the end of free movement, and we will continue to emphasise that commitment. I hope that that gives the noble Lords, Lord Rosser and Lord Kennedy, and the noble Baroness, Lady Ritchie, comfort enough not to move Amendment 58.
Turning to the question of deportation raised by either the noble Baroness, Lady Ludford, or the noble Baroness, Lady Hamwee—it is getting late—Amendment 8 seeks to make additional provision with regards to the deportation of Irish citizens and their family members. First, subsection (6) seeks to ensure that the Secretary of State may not conclude that the deportation of an Irish citizen is conducive to the public good, unless she concludes that, due to the exceptional circumstances of the case, the public interest requires deportation.
Subsection (7) seeks to ensure that the family member of an Irish citizen can be deported only on the grounds that their family member is or has been deported, where the Secretary of State has concluded that the deportation of the Irish citizen is conducive to the public good and, due to the exceptional circumstances of the case, the public interest requires their deportation.
I use this opportunity to reiterate our approach to deporting Irish citizens. While Clause 2 disapplies the right to enter and remain in the UK, without leave, for those Irish citizens who are subject to a deportation order, in light of the historical, community and political ties between the UK and Ireland, along with the existence of the CTA, Irish citizens are considered for deportation only where a court has recommended deportation or where the Secretary of State concludes that, due to the exceptional circumstances of the case, deportation is in the public interest—much in the way that was pointed out by the noble Baroness.
The Government are firmly committed to maintaining this approach. Irish citizens were exempted from the automatic deportation provisions in the UK Borders Act 2007 by the Immigration, Nationality and Asylum (EU Exit) Regulations 2019, which were laid in February 2019, as the noble Baroness, Lady Ludford, pointed out.
Under the Immigration Act 1971, the family member of an Irish citizen would not be considered for deportation on the grounds that their family member is or has been ordered to be deported, unless a deportation order was made in respect of that Irish citizen. The amendment also seeks to prevent the deportation or exclusion from the UK of an Irish citizen if they are among the “people of Northern Ireland” entitled to identify as Irish citizens by virtue of Article 1(vi) of the British-Irish agreement of 1998.
I make it absolutely clear that the Government are fully committed to upholding all parts of the Belfast agreement, including the identity provisions which allow the “people of Northern Ireland” to identify as Irish, British or both, as they may so choose, and the citizenship provisions which allow the “people of Northern Ireland” to hold both British and Irish citizenship. Recognising the citizenship provisions in the Belfast agreement, we would consider any case extremely carefully, and not seek to deport a “person of Northern Ireland” who is solely an Irish citizen. Exclusion decisions are taken on a case-by-case basis by Ministers. Exclusion of a person from the UK is normally used in circumstances involving national security, international crimes—including war crimes, crimes against humanity or genocide—serious criminality or corruption and unacceptable behaviour. It is essential to the security of the UK that Ministers retain the power to exclude in such serious circumstances, although of course all cases are considered extremely carefully.
I hope that with these explanations, the noble Baroness can withdraw her Amendment 8.
Baroness Hamwee (LD) [V]
My Lords, the Minister was unsure whether points were made by my noble friend Lady Ludford or by me. I cannot speak for my noble friend, whom I am very happy to be confused with, but speaking for myself, I cannot claim any Irish family connections, although I have a lot of friendships. Amendment 58, calling for a report, begs the question of what would happen if the report showed that the current position is inadequate, as I think it would. That is the thrust of Amendment 8, and why it is seeking to use the opportunity of the Bill to set the position in stone rather than sand.
The Minister’s response seemed to confirm the points that I had made. She talked about the common travel area memorandum, but it is only a memorandum. The Bill has the effect of weakening the legal protections. It does not reflect the spirit of the Belfast agreement.
I thought it was telling—and frankly embarrassing and even shaming—to hear the noble Baroness, Lady Ritchie, reminding the House that the protection depends on EU law. She made the point that it is not possible to make an informed choice, which is also extremely telling because, as she said, the common travel area arrangements are written in sand. I had not thought of that when I tabled my amendment, but it is intended to ensure that those sands do not shift.
I do not disbelieve what the Minister has said, but she has talked about the Executive attitude, not the legal position. While of course I do not question her integrity, she will know as well as I do that Executives change, as do their views. I am sorry that we have not been able to make more progress on this. I beg leave to withdraw the amendment.
Baroness Hamwee
Member’s explanatory statement
This amendment would restrict the Secretary of State’s discretion and preclude her or him from making regulations which are not necessary.
Baroness Hamwee (LD) [V]
My Lords, in moving Amendment 9, I shall speak also to Amendments 10, 11, 13, and 35 to 38, in my name and that of my noble friend, and to my objection that Clause 4 should stand part of the Bill.
In the debate on Amendment 3, we heard some precise and forensic criticism of the drafting of the Bill. I could almost say—but I will not—that we could just read across to this group all that was said in that debate. I will resist that temptation.
Clause 4 provoked the Delegated Powers and Regulatory Reform Committee to repeat the view of the Constitution Committee that skeleton Bills inhibit parliamentary scrutiny, that it is difficult to envisage any circumstances in which their use is acceptable, and that the Government must provide a justification for them. The committee describes the Bill as leaving so much of the post-transition period regimes for immigration and for social security co-ordination—the subject of Clause 5— to be “provided for in regulations”. “By-passing Parliament”, the phrase used, must cause anyone with any interest in the governance of the UK to be really worried. I must say that people are worried about the governance of the UK whether they think about it in those terms or, as is currently the position, they do not under- stand what the Government are telling them to do.
There is a need for the provision of mechanics for ending free movement; this has not suddenly come upon us out of the blue. While of course I accept that this is a complex area, it means that there is all the more need to have got on with the detail and published it, even during the Parliament before last, so that we could have considered it. After all, the referendum was held four years ago last June, and Article 50 was triggered in March 2017.
The “breathtakingly wide” powers—I quote the Public Law Project—which it is proposed will be given to the Secretary of State, would give anyone pause. The Public Law Project says that its work on Brexit
“seeks to promote Parliamentary sovereignty.”
That is a point worth making in the context of this debate. The term “parliamentary sovereignty” may have a familiar ring in the context of Brexit.
Baroness Hamwee (LD) [V]
My Lords, the noble Baroness, Lady Neville-Rolfe, expressed some frustration about the limitations arising from the scope of the Bill. The noble Lord, Lord Green, referred to similar points on the report of the Constitution Committee. I have long taken the view that, when people with very differing views have the same criticism as I do, we must have a point.
I omitted to thank the Delegated Powers and Regulatory Reform Committee and its chair, although my thanks must be implied by all the references I made to them. That I quoted from the report did not steal the thunder of the noble Lord, Lord Blencathra, at all. He cannot be surprised, because they were very good quotes. I said that I hoped for some excoriating speeches. I had him in mind, but he has moved on to sorrow. However, he did not disappoint.
When I started to read Clause 4, I picked up my pen and did not put it down, which was obvious from my raft of amendments, which almost amounted to an edit of the clause. The Minister says that she seeks to reassure us about how the Government intend to use the powers. As I so often say, I do not doubt the good intentions behind all this, but I ask her if she would be comfortable if—unlikely as it may seem—our positions were reversed. Would she take comfort if I produced a draft that was illustrative only? She said several times that the Government cannot accept the amendments. It really amounts to “will not” accept the amendments. As regards “made affirmative”, how realistic would it be for Parliament to block the instrument regarding the ending of free movement, after free movement had ended?
There is such an absence of detail on the workings of the policy. The six “consequential repeals” in Schedule 1 do not “scratch the surface”; that is not my analysis but that of the Bingham Centre for the Rule of Law, given the huge amount of immigration legislation. It also says that “a solitary page”, paragraphs 5 and 6 of Schedule 1, purporting
“to remove all rights, powers, liabilities, obligations, restrictions, remedies and procedures which derive from EU law … is lazy law-making. If people are going to have their rights removed, it is incumbent on Government to list precisely what those rights are and then specifically to remove them.”
It says that that would also enable
“parliamentarians to know precisely what they are voting for”.
To revert to the reference made at the beginning of today’s debate by the noble Lord, Lord Pannick, Caligula might have been proud of Clause 4. This is not the time to pursue the matter, although I am clear that we have to return to it. I beg leave to withdraw the amendment.
Baroness Hamwee
“(2A) The power to make regulations under subsection (1) does not include power to make provision inconsistent with the withdrawal agreement as defined by section 39 of the European Union (Withdrawal Agreement) Act 2020 (interpretation).”Member’s explanatory statement
This amendment would ensure that the power cannot be used inconsistently with the Withdrawal Agreement.
Baroness Hamwee (LD) [V]
My Lords, in moving Amendment 12, I shall speak also to Amendments 18, 19 and 83.
There is nothing subversive in Amendment 12—there is no cunning plan. All the amendments in this group are intended to ensure consistency with the European Union (Withdrawal) Act 2018 and the European Union (Withdrawal Agreement) Act 2020. It does what it says on the tin. In the light of Clause 4, which spells out the power to make regulations which “among other things” may modify primary legislation, these amendments seem to us to be necessary.
I was about to refer to the British in Europe group as a campaign group, but it is far more than that: it represents its stakeholders and argues very powerfully for the interests of British citizens in Europe. As the group puts it, the withdrawal agreement is the vital underpinning of rights created in UK law for UK citizens living in the EU and for EU citizens living here. In various debates over the past few months, noble Lords have tended to focus on the latter, because living here means being subject to UK law. But British citizens in the EU are British and must not be prejudiced by anything that is not in accordance with an international treaty.
I say that without having heard much news since this morning because of being, as it were, in the Chamber, but the news this morning was very much about not following through—not complying with—an international treaty. After all, we should all be entitled to rely on an international treaty.
Immigration law is so complex that to allow an inconsistency to slip through unintentionally is a real danger. Amendment 12, therefore, provides in terms that the power to make regulations does not include a power to make a provision inconsistent with the withdrawal agreement.
Amendments 18 and 19 aim to bring the clause into line with the two pieces of legislation that I have mentioned. Section 7(2) of the European Union (Withdrawal Agreement) Act 2020 provides that, if the Minister considers it appropriate, regulations under subsection (1) may be made so as to apply both to persons to whom the provision in question applies and—this is the relevant point—to persons to whom the provision does not apply but who may be granted leave to enter or remain in the UK by virtue of residence scheme immigration rules and who do not have such leave. Amendment 18 would replicate that.
Amendment 83 deals with Clause 5, and it may be appropriate to come back to it when we debate Clause 5. However, again, its purpose is to ensure that the power created by the clause can be used only in ways which are consistent with our country’s obligations under the withdrawal agreement. “Retained direct EU legislation” is the full gamut of EU legislation on social security co-ordination, and under the withdrawal agreement the UK is committed to applying this legislation to all those who come within the scope of Part 2. Among other things, the legislation covers the aggregation of social security contributions made in different countries, mutual healthcare arrangements, the payment of pensions and pension increases for pensioners living in different countries, and the regulation of other cross-border benefits.
In practical terms, the most important aspect for British citizens covered by the withdrawal agreement is the continued right for them to receive their pension and pension increases. Many noble Lords will recall debates regarding pensions and pension increases for people who have moved away from the UK, outside the EU, and whose pensions have been frozen. Other aspects are the continued right of pensioners to healthcare under the S1 scheme, which enables a pensioner residing in a country not responsible for their pension to receive healthcare in the country of residence at the expense of the country paying the pension contributions. This is a mutual arrangement that also applies to EU pensioners living in the UK. One aspect of this is the continuation of the scheme whereby those who have worked in the UK and one or more EU countries have their contributions aggregated, so that they do not fall foul of the national rules on minimum contribution periods.
One of the very big concerns of people who lose the right of free movement is the impact on their retention of rights and ability to move in the course of work as their careers develop and their jobs take them to different countries. Without this scheme, many people who have contributed for a full working life but have moved several times would end up without a pension at all. Again, we are faced with the possibility of a Government modifying—or worse, perhaps—these provisions by regulation alone.
All the points that have been made this afternoon and this evening about what could happen are relevant here. Social security legislation probably rivals immigration legislation in its complexity, so the point that was made earlier about unwitting breaches of the withdrawal agreement would apply as well. I assume that we will have similar answers to this amendment, but, although the points may be similar and parallel, they are no less important or worthy of being pressed and explored, as I am seeking to do with Amendment 83. However, at the moment, I will formally move Amendment 12.
The Deputy Chairman of Committees (Lord Lexden) (Con)
I call the noble Lord, Lord Flight. Lord Flight? As he is not present, I call the noble Baroness, Lady Altmann.
Baroness Williams of Trafford (Con)
My Lords, I thank the noble Baroness, Lady Hamwee, for speaking to this group of amendments, which concern the scope of the delegated regulation-making power under Clause 4 and, in the case of one of the amendments, Clause 5. As I have said, it is right that Parliament pays close attention to the provision of delegated powers, and to assist we have shared draft illustrative regulations to be made under Clauses 4 and 5, subject to Parliament’s approval of the Bill.
Amendments 12 and 83 prevent the Government from using the powers in Clauses 4 and 5 to make regulations which are inconsistent with the EU withdrawal agreement. We already have a legal obligation to comply with that agreement, which also has direct effect in domestic law in accordance with the European Union (Withdrawal Agreement) Act 2020. These amendments are unnecessary and would call into question why they are not included in every other item of legislation across the statue book.
I turn to Amendments 18 and 19. Clause 4(4) allows the regulation-making power to make provision for those who are not exercising free movement rights at the end of the transition period. This group may nevertheless be eligible for status under the EU settlement scheme and are therefore still affected by the repeal of free movement. Clause 4 does not allow changes to the statute book for migrants from the rest of the world, who are not affected by the repeal of free movement. The suggested amendments are unnecessary and would add confusion and hinder our ability to make appropriate provision for those affected by that repeal.
It is right that Parliament should set the scope of the power in Clause 4 in terms appropriate to the purposes of this Bill in ending free movement and protecting the rights of Irish citizens. It is also right that Parliament should retain the appropriate oversight over the exercise of that power. The Government’s intention here is simply to ensure absolute clarity of purpose.
The noble Baroness, Lady Ludford, mentioned some issues that I have already addressed, namely comprehensive sickness insurance and the form versus the digital form. Article 18(1) explicitly provides that a document evidencing status may be in digital form. She also talked about children and the EU settlement scheme, specifically children whose parents—or indeed institutions in which they live—may not have signed them up. We will provide for reasonable excuses; I believe that we will come to that later in the Bill.
Baroness Hamwee (LD) [V]
My Lords, I am particularly grateful to the noble Baroness, Lady Altmann, with her knowledge of pension provisions, for contributing to this debate. My noble friend said that I must have been prescient in tabling this amendment. I think it was more about a continuing, underlying, and rather generalised sense of anxiety—not about resiling from the withdrawal agreement, which had not struck me as a possibility until a few hours ago.
The Minister has given us some reassurance; I hope that I have heard correctly over the airwaves about the legal obligation to comply with the withdrawal agreement. I suppose that this does not mean there will not be an attempt to change that legal obligation in some way. Anyway, that is not for tonight and certainly not for after 10.15 pm. Probably the best I can do at this moment is to beg leave to withdraw Amendment 12; I do so now.
Immigration (Persons Designated under Sanctions Regulations) (EU Exit) Regulations 2020
Baroness Hamwee Excerpts(4 years, 2 months ago)
Grand CommitteeRead Full debate Read Hansard Text Read Debate Ministerial Extracts
Baroness Hamwee (LD) [V]
I thank the Minister for her explanation of the instrument. I was able to hear her, though I regret I was not able to hear the noble Lord, Lord Cormack.
We on the Liberal Democrat Benches are certainly not opposing the regulations. Sanctions are an important tool to protect both security and human rights; the noble Lord, Lord Singh, in particular has focused on this. UN sanctions seem in the main to relate to security, though I would argue that human rights are both intrinsically important and very closely bound up with security issues. Liberal Democrats are far from alone in having called for more sanctions against those responsible for human rights abuses in Hong Kong—which we must not allow to go off the agenda—and abuses against the Uighurs, which take the meaning of the term “abuse” to an extreme.
Immigration sanctions are not the only sanctions which can be applied against individuals. Financial sanctions can be very telling, though in both cases the impact on people in this country, and on the families of those people, can be very considerable—something that we might come back to in the Counter-Terrorism and Sentencing Bill. Judicial oversight is a necessity, and I will come back to that this afternoon.
Can the Minister explain whether the travel bans under these regulations will have corresponding financial sanctions, or are the two entirely different but possibly parallel streams? One would be very keen to know that we can make more difficulty for some people, not only over shopping trips to Harrods but regarding the acquisition of residential properties whose vacancy is, at best, offensive.
These travel bans carry with them the right to large human rights law protection claims. I trust that the lawyers who undertake that work will not be attacked as “activist lawyers” by the Home Office, though I have to say for myself that I would be proud to be an activist lawyer. Indeed, I hope that all parliamentarians find it possible from time to time to be activists in the law-making process. Where would Parliament be, having made the laws, without lawyers enabling people to exercise rights under them?
I am going to take the opportunity to make the point about the importance of the European Convention on Human Rights and its place in our domestic law. I pay tribute to Lord Lester, my noble friend who died very recently, for his work on human rights and the creation of the Human Rights Act.
I emphasise the importance of judicial review. It may be called on more often and more extensively than was the case some years ago, which is not actually surprising when individual rights are threatened by the state. Judicial review is often portrayed as something pursued by tedious lefty lawyers, but I see it as having a very important function.
I have some more specific questions for the Minister. Will the claimant be able to make a human rights claim and appeal against a refusal of the claim in-country, or will he be required to apply from abroad? I suspect, in the light of Section 92 of SAMLA, that it is mostly going to be the latter, something to which we have often expressed opposition.
The instrument extends beyond the UK to jurisdictions that we are told in the Explanatory Memorandum have not been consulted. The fact that a territory has no competence does not mean it is not affected, and it may well have something to say on the issue. Most specifically, presumably the Channel Islands, the Isle of Man and the British Overseas Territories are going to have to enforce the bans. Is that the case, or is enforcement a matter for the UK courts? Can the Minister explain how that is going to work?
I confess I am stumped by paragraph 7 of the regulations. Nothing in subsection (4) of the section that it refers to permits the tribunal to consider the validity of a decision to make or vary, or to refuse to revoke or vary, the immigration designation of an appellant. Can the Minister help us by approaching it the other way around and telling us what it can do?
I assume that the term “notification” does not necessarily mean that the notice has actually been received. I guess that would be something for other provisions.
Paragraph 3 applies the instrument to a person lawfully within the UK. What if that person is here unlawfully? Does one just go straight to immigration enforcement? What if the person has made an asylum claim that has not yet been determined? I should say that I do not regard that as being here unlawfully, but which claim will be determined first?
I think the Minister said that the Home Office intends to start with this arrangement, which suggests that there will be a review. Can she tell us when that is likely to take place and anything more about the review?