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

Caroline Nokes Excerpts

Committee Debate: 2nd sitting: House of Commons
Tuesday 12th February 2019 Public Bill Committees

[Nick Thomas-Symonds]

Yes, collectively. But if there was ever a measure that restricted the number of nurses coming from overseas, such as the £30,000 threshold, clearly that would have a detrimental effect on the NHS. It is as simple as that.

Professor Dame Donna Kinnair: It is as simple as that, given that one of our major policies is that we recruit from overseas rather than growing our own.

[The Minister for Immigration (Caroline Nokes)]

Q Professor Kinnair, I have a question on shortage occupation lists and the removal of doctors and nurses from the tier 2 cap. Notwithstanding the £30,000 threshold, do you see the shortage occupation list and a lower salary threshold as a potential solution to that?

Professor Dame Donna Kinnair: I think it possibly would be a solution to that; I think you are right. But we have “Agenda for Change” for a reason: so that we have a national approach to salaries. Why would we then treat people coming in from overseas differently? We know that our salaries are not high enough to live on in this country. Why would we be starting to think that it is okay to lower it to £20,000, £18,000 or some arbitrary sum that people cannot live on in this country?

[Caroline Nokes]

Q I have a question for Vivienne. We know that last year the number of applications from international students rose by 9%. I want to clarify your comment that EU students have a lot of choice. We will agree on that. They can go all over the continent for their university education. The phrase you used was, “We seem to make it difficult for them to come”. But we have free movement, so is that us—the Government—making it difficult for them, or is it the universities?

Vivienne Stern: With free movement there is a distinction between EU nationals and non-EU nationals. The 9% increase is in visa applications.

[Caroline Nokes]

Q It is, but we know that the numbers are up. You specifically referred to EU students and said that we make it “difficult for them to come”. How?

Vivienne Stern: My comment about making it “difficult” relates to non-EU students. It refers to the visa system.

[Caroline Nokes]

Q So you were not talking about it in the context of EU students having a lot of choice?

Vivienne Stern: What I am suggesting is that should EEA nationals find themselves in a system such as the one that currently applies to non-EU nationals, we would be making it less attractive compared with the many other high-quality destinations they could choose within Europe, where there would not be such a visa hurdle.

[Caroline Nokes]

Q Can I just clarify that Universities UK has long lobbied for more generous post-study work visas. Those proposals are included in the White Paper. What calculations have you made on how many more students you expect to see on top of the 9% increase in visa applications we saw last year?

Vivienne Stern: The White Paper proposals are really welcome. It is great that the Government have acknowledged that we need to create more generous post-study work opportunities, and not only for Masters and PhD students—as recommended by the MAC—but for undergraduates. It does not quite achieve what we suggested needed to be achieved. I may betray my age by saying that this is a Cuprinol test question. When you are a student and thinking, “Do I go to the US, or maybe Australia or the UK”, we believe you ought to look at the visa regimes—

[The Chair]

Order. I really am sorry; we needed a lot more time. On behalf of the Committee, I thank our three witnesses. We are very grateful for the evidence you have presented to us today.

Examination of Witnesses

Gracie Bradley and Jodie Blackstock gave evidence.

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[Paul Blomfield]

Q Can I pick up on a point that you touched on earlier, Ms Blackstock, and which we talked about with earlier witnesses—the right of appeal for settled status? The Government have previously suggested that the process would be a relatively straightforward one, with very few areas of discretion. There does, however, seem to be some grey area in relation to how the Home Office might be able to treat those who have not exercised treaty rights, and so there is a potential for refusals that might require challenge. If there is no formal process of appeal, how satisfactory do you both think that the remaining options provided for people—administrative review and judicial review—are in exercising rights?

Jodie Blackstock: The problem with simply relying on judicial review as a mechanism is the difficulty in mounting a judicial review now, as a result of the changes made to access to legal aid prior to permission for judicial review, and the fact that judicial review is not perfect. In order to be successful in a judicial review, you need to demonstrate that the process by which the decision was made was flawed. That does not remake the decision; it sends the decision back to be made again, according to whatever error needs to be addressed. That, in itself, seems to be the most bureaucratic and inappropriate method for what is, as you say, potentially a simple grey area that requires a simple review.

Internal administrative review might be a sensible solution if it was not set against the context of a Home Office that has been struggling, as we know, for the past few years to make decisions in a way that provides public confidence. Without an independent appeal right, we are concerned that that would be all that was available. We are talking about a significant number of people who will apply to this scheme, with every potential for there to be inadequate administrative provision to deal with it, so an appeal right seems pretty important to us.

Gracie Bradley: I agree with that assessment, and I would add that up to half of appeals are successful, so it is all the more vital that people have an appeal right and that they have legal aid.

[Caroline Nokes]

Q I think you have both mentioned the Law Commission review and its publication of the consultation paper on how the immigration rules could be simplified. You will not get any argument from me about the idea that the rules could be simpler. I wondered whether you had both responded to that consultation, and whether—in as short a period as possible—you could set out any specific simplifications that you have asked for?

Jodie Blackstock: We did not respond to it, but we have spoken to the Law Commission in general about the need for simplification of procedural rules for people across the justice system. Our report “Understanding Courts”, which we produced a couple of weeks ago, calls for simplification so that litigants in person—or anyone seeking to use our justice system—can understand the system. The fact that immigration rules can be amended so swiftly and there is no requirement for primary scrutiny of those changes is problematic, but at the same time we accept that the rules deal with an incredibly complex set of arrangements, so some careful thought will be required about how to simplify those rules.

Gracie Bradley: Liberty did not respond to that consultation.

[Caroline Nokes]

Q Simplification could be something along the lines of ending free movement and bringing EU citizens in line with the rest of the world. Do you think that is a welcome simplification?

Jodie Blackstock: As I said in response to a previous question, Justice would not take a view on whether it was appropriate simply to remove the free movement process entirely and have the scheme that applies to third countries. Our concern is to ensure that people who are caught in the gap between those two schemes have their rights protected, if they currently exercise such rights, and that they are able to access the replacement scheme, whatever it may be, in a way that is clear and fair, and is subject to appropriate appeal.

Gracie Bradley: In general, it is not in Liberty’s remit to comment on people’s ability to come in and out of the country. Our remit does not really touch on that, and we do not have a view on the end of freedom of movement per se, so I cannot really comment on that.

[Caroline Nokes]

Q I have a final question on data and data sharing. I am going to gently correct something Ms Blackstock said about the settled status scheme: it is now in its public testing phase, so it is open for anyone to apply—it is not limited cohorts any more. We know from phases 1 and 2 that in excess of 80% of the people who have been through the process and been granted settled status have achieved that without having to provide any additional information on top of their records with Her Majesty’s Revenue and Customs or the Department for Work and Pensions. Is there a case to make that in some instances when Government share data across Departments, it can be a force for good?

Gracie Bradley: Yes. I really want to reiterate that Liberty is not opposed to data sharing per se, because that would be a somewhat luddite position. Where data sharing makes people afraid to access the central services that are necessary for the exercise of their fundamental rights, we would say that that is a problem, and that there should be a firewall between those essential services and Home Office immigration enforcement. However, the services that I have in mind are, of course, things such as education, healthcare and the ability to report crimes to the police. I am not really thinking about DWP or HMRC stuff, because I would not say that that is necessarily to do with essential services that relate to people’s exercise of their fundamental rights. We are not against all data sharing, but we are very concerned about some data sharing, where it stops people from accessing their fundamental rights.

[The Chair]

If there are no other questions, I thank our two witnesses very much for the time they have spent with us and the evidence they have given. We can start our next session a little early.

Examination of Witness

Matthew Fell gave evidence.

--- Later in debate ---

[The Chair]

If there are no other questions from colleagues, I will bring the Minister in next.

[Caroline Nokes]

Q Thank you very much, Sir David. At various points earlier today, we heard suggestions that short-term visas and short-term contracts were inevitably exploitative. Does the CBI have a view on that?

Matthew Fell: I do not believe that short-term visas and short-term contracts are linked to exploitation. I think it is more a recognition of the way the world works today. Many businesses are done on a contracting basis, as well as a longer-term basis, so I do not recognise the link between the two.

[Caroline Nokes]

Q Would the CBI therefore support a seasonal agricultural workers scheme, for example, and do you see any other sectors that might benefit from something similar?

Matthew Fell: Our starting approach on that has been to say, “Could we look to design a system that works for all parts of the country and for all business sectors?” Working towards that is our ideal goal. That would be our preference before reaching for carve-outs for different industry sectors.

If that aim cannot be achieved—we know that seasonal agricultural workers are very important for the sector—and if that is the best solution that we can arrive at, clearly it has a part to play alongside a reformed and simplified system. However, our preference is to get the overall system right in the first instance in a way that works for everyone.

[Caroline Nokes]

Q I am conscious that we invited the Scottish CBI to come and give evidence, but it deferred to you and said it was happy that you would be able to represent its views. Was there anything specific that you would like to say about either regionality more generally or Scotland in particular?

Matthew Fell: I have made remarks about recognising different wage levels in different parts of the country and so on. I refer people to my colleague who gave evidence in Holyrood earlier today. There will be quite a bit on the record from that evidence session if you would like to tap into the Scottish-specific dimensions to it.

[Caroline Nokes]

Q Fabulous. I am sure we will. I was interested in your comments on a local labour market test. You will be conscious that in the White Paper are proposals to remove the requirement for a resident labour market test. Do you not support that?

Matthew Fell: Overall, I think we do support the removal of the resident labour market test. I was just illustrating that, if there is a desire to provide a sense of greater control of migration, you can use different mechanisms to provide that control that we think would provide the right balance between openness and the public assurances that are sought on control. It was an example of another mechanism to achieve it, but we do support the removal.

--- Later in debate ---

[The Chair]

I am bringing the Minister in earlier this time, in case we run out of time.

[Caroline Nokes]

Q Earlier today, we heard concerns about those employed in the agricultural sector, both from the Joint Council for the Welfare of Immigrants and the TUC. Would you say that agriculture is a more exploitative industry than others?

Meri Åhlberg: Part of the problem in agriculture is that people tend to be quite isolated in their working environment, because they are often employed on farms that are far from cities and they might not have transport options. That is definitely one of the contributing factors. There are also a lot of other factors. That was recognised in the past when there was the Agricultural Wages Board. In the ’80s, when most of the wages boards were eliminated, the Agricultural Wages Board was kept, because it was recognised that there were specific vulnerabilities in agriculture, for instance the fact that crops can fail or there might be bad weather and workers needed to be protected against not being paid in those cases. So yes, I think there is.

[Caroline Nokes]

Q Do you think workers’ protections are best secured through immigration policy or through a range of other Government Departments and tools? How could we better work with the Department for Business, Energy and Industrial Strategy, the Department for Work and Pensions and the Department for Environment, Food and Rural Affairs, for example, to secure that?

Caroline Robinson: Workers’ protections are best secured through the promotion and protection of labour rights. Immigration policy can serve to undermine the rights of workers—for example, the absence of routes to access justice for undocumented workers, the limitations on undocumented workers coming forward to report abuses and exploitative practices against them for fear of immigration repercussions such as those I have just mentioned, and the offence of illegal working—and there can be an undermining influence from things such as short-term visa schemes. If protections are not put in place, there is a real risk of exploitation.

As I have mentioned, we advocate for the role of labour inspectorates and labour market enforcement in promoting, protecting and upholding labour rights, along with a number of other measures. For example, Meri mentioned access to a complaints line being crucial so that workers can report abuse against them, but we also need strong, proactive labour market enforcement. We have advocated for a 60% focus on proactive operations for labour market enforcement bodies, and a 40% focus on reactive operations. We are very grateful to the Government for recognising that in their response to the director of labour market enforcement’s annual strategy last year.

[Caroline Nokes]

Q We have taken on board FLEX’s position that there should not be a seasonal agricultural worker scheme. You will have heard about the pressures from organisations such as the National Farmers Union, and the comment this morning from Alan Manning, who I think pointed to parts of the agricultural sector being 100% reliant on labour that has come in from overseas. How can we best make a SAWS scheme that works to protect the rights of those individuals who are coming in through the scheme, and perhaps protects them from the burden of costs? You have been clear about the costs that might be imposed on workers, but the message I got from the NFU last Friday was that they are concerned about the burden of costs being shifted very heavily, not on to the labour providers but on to the farms themselves. Those farms might be in the position of paying up-front costs of £1,000 per worker, just to make sure that they come in and are part of the scheme.

Meri Åhlberg: As Caroline said earlier, we recognise that if these schemes are being brought in, they need to be made to work as well as possible for workers, and there are definitely protections that can be put in place. One of the key ones is that workers have to be able to change employers freely, under reasonable terms. Wages and standards should be set together in a tripartite way, together with trade unions, Government and employers, so that considerations that are particular to agricultural workers are taken into account.

There is already good work in the agricultural sector, such as the Gangmasters and Labour Abuse Authority licencing labour providers. Anyone who wants to bring workers into the UK, no matter whether they are in the UK or overseas, has to have a licence and to follow specific terms and conditions. Those conditions include, for instance, the fact that they are not allowed to charge recruitment fees. We need to make sure that the GLAA can properly licence overseas recruitment agencies, and that they have the resources and capacity to do so. Currently, for example, if the seasonal workers pilot is being opened to all countries outside the EU, that becomes a monumental task. Making sure that the GLAA is able to do that task, and has the resources and capacity to do so, is crucial.

Caroline Robinson: We also have to recognise the real risks to those workers. That is why I was talking about a complaints mechanism: establishing something like a 24-hour multilingual hotline for those workers, so that we can make sure that we get to those workers who are most vulnerable and in need of assistance, would really help.

[Caroline Nokes]

Q Do you think that is a protection that would be best put in place by the Home Office as part of immigration policy, or by some other organisation?

Caroline Robinson: The complaints mechanism, or the—

[Caroline Nokes]

The complaints mechanism, because this Bill is specifically about turning off free movement and the role that immigration policy has to play. Do you think the Home Office is best placed to do that?

Caroline Robinson: You are right that possibly the Home Office is not best placed to do that. It holds a twin role with BEIS hosting the director of labour market enforcement, so it has some engagement in labour market enforcement and oversight. You are right, there could be a BEIS role.

[Nic Dakin]

Q Are you saying it is more about enforcement than regulation? Are there flaws in the regulation that you are concerned about, or is it really about capacity around enforcement? We can have all the regulations in the world, but if the enforcement is not there, it doesn’t help.

Meri Åhlberg: It is difficult to say, for instance, about the 12-month programme because there has not been a lot of information about it. We do not know which countries are lower risk; we do not have a lot of information about those programmes. There are definitely aspects of temporary migration programmes that put workers at risk. Anything that restricts workers’ and migrants’ rights is going to include some level of risk.

I feel as if the Brexit conversation and the immigration conversation has been focused very much on whether we should have more or less migration, rather than on how we make sure that we are providing decent and good work for everyone. Part of that discussion is around regulation. They are so intricately tied to each other that it is hard to separate them.