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

Caroline Nokes Excerpts

Thursday 14th February 2019 Public Bill Committees

[Nic Dakin (Scunthorpe) (Lab)]

Q Earlier, someone said that there was a danger of people being robbed of the safeguards that they need; and later, Bella, I think, said that there was a risk from independent checks not being in the system. The 28 days seemed to be a major way of addressing the issue and putting checks in the system. Is that sufficient, or are other things necessary? We do not wish to complicate things; if that is sufficient, great.

Bella Sankey: There are lots of other things—checks and provision—that I think are needed to improve the system and make it fit for purpose. A statutory time limit is absolutely essential. I think everyone who works on immigration detention, whether they are caseworkers, researchers, non-governmental organisations, academics or the lawyers involved, would agree that a statutory time limit is the absolute priority and actually is long overdue.

In addition, we need to restore legal aid, so that people’s substantive immigration cases can be properly considered and we are not at risk of continuing to deport people unlawfully, as it has now been accepted we did with the Windrush generation. That is still going on every single day.

There are a whole host of ways in which our immigration rules more generally could be improved to better safeguard people’s human rights to ensure that families are not unnecessarily separated and that people are not re-traumatised by a system that is often so disbelieving, even when there are such clear signs of, for example, persecution and torture.

[The Minister for Immigration (Caroline Nokes)]

Q I want to start by welcoming the comments that Ilona made about wanting to work with Government in relation to the White Paper. I also want to talk a little bit about the EU settled status scheme and how it impacts children, and the focus that we have had on vulnerability. I wondered whether you felt that the £9 million that the Government had made available for charities, NGOs and so on to support the vulnerable was enough and whether the Children’s Society was planning on bidding for any of that.

Ilona Pinter: We did. Thank you for the question. I think that there has been recognition of the challenge in regularising or settling the status of so many EU nationals. I think the Home Office has done a huge amount to try to make this as simple as possible. I mentioned the fees; getting rid of the fees is really welcome. Of course, the working with voluntary organisations in the testing as well as going forward to address the needs of vulnerable groups is really important and welcome.

We are currently also working with the Government on looking at children-specific communication—communication aimed at children and young people and their parents and about making sure that as many families and children as possible are able to settle their status. In addition to the 900,000 children I mentioned, the Migration Observatory has also highlighted that 1.2 million EU nationals are adults who are parents. They will have to think about their children’s status or citizenship rights. That is really important.

There are things that we believe need to be done to provide safeguards—for instance, a right of appeal in the EU settlement scheme. That was within the statement of intent for the withdrawal agreement Bill, but I know that the Committee has discussed whether this Bill might be the right avenue for it. Equally, legal aid is a key issue. We welcome the fact that the Government have agreed to provide legal aid for separated children, and we understand that that will extend to EU settlement, but children within families will remain unable to access legal aid.

There are a range of complex situations where advisers at the Office of the Immigration Services Commissioner level 1—the level that enables people to support those applying for settled status—will be unable to deal with the complexities that some families will have, because of myriad reasons to do with documentation, trafficking histories, domestic violence and a range of other issues, particularly in families where there is a Zambrano carer. Some issues remain outstanding.

[Caroline Nokes]

Q I am sorry—I am conscious that we have only a couple of minutes. I think pretty much all the panel talked about simplification of the immigration rules. I think I said on Tuesday that nobody gets any argument from me about the necessity of doing that. Presumably you have all responded to the Law Commission’s consultation, or will do so before it closes. I wonder whether you could give me your top pick of what you would like to see from a simplified system.

Jurga McCluskey: I think I already made this point: it is very important that the system addresses both categories of people in the same way. The changes that have been made are very welcome, particularly the resident labour market test, and so on. I have mentioned those points before.

What I would really like to see, in addition to what you have already done in the White Paper, is going one step further and, in particular, removing the cooling-off period. It still seems to be manifesting itself in the White Paper. I realise what the reason behind the net migration target is—sustainable levels of migration, and so on—but it would be great to see you going one step further and demonstrating that it will be about the brightest and the best in the future, and attracting people who will truly benefit the economy. Cooling off is not serving that purpose; it is making people leave just as they have made an impact.

[Caroline Nokes]

Thank you. Can we turn to Mr Berry? We have three minutes.

Adrian Berry: Very briefly, write it in plain English and avoid the endless repetition that appears in the immigration rules. Get rid of overly prescriptive rules of evidence, and allow forms of evidence that allow people to show that they substantively satisfy the categories for which they are applying. In terms of the content of the immigration rules, make family reunion rules such that they promote family reunion rather than hinder it.

[Caroline Nokes]

Q You said earlier that you did not think that there was any urgency—I cannot remember at which specific point. Do you not think that 29 March is now somewhat pressing, and perhaps the Government should feel a sense of urgency about, first, ensuring that we address the issue of turning off freedom of movement and, secondly, looking to our future immigration system?

Adrian Berry: I was not objecting to clause 1 of the Bill, which switches off free movement. I was saying that you do not need clause 4 and the Henry VIII powers; you can let your colleagues in this room, and in Parliament generally, do their job and make primary legislation in the usual way.

[Caroline Nokes]

Q Except, on immigration, the rules have been the usual way to do it since 1971.

Adrian Berry: You have not used the immigration rules to amend primary legislation, and they are statements of Executive policy, not legislation.

[Caroline Nokes]

Q Okay. Mr Valdez-Symonds—your point on simplification.

Steve Valdez-Symonds: I agree with all the points that Mr Berry has just made. The one thing that I would add is that those rules have become highly volatile. It is easy to forget that the lack of simplicity for people is not just a one-off experience; people experience those rules through long periods of their lives in the UK, when they come to have to renew their visas or when there are changes that affect their continuing compliance with those rules. I am afraid the rules change many times a year, sometimes with very little notice and with dramatic impacts upon the lives that people have invested in with their families in this country. Something needs to be done to address the certainty that people need to be able to carry on with their lives.

--- Later in debate ---

[Afzal Khan]

Q Will you also shed some light on the number of people who have been detained and later given some sort of leave to remain?

Hilary Brown: There are high numbers of people who are quickly detained when they are initially detected by various means—people who have trafficking offences and who have been randomly stopped by police and immigration authorities. In the first instance, they are taken to police stations and not given access to appropriately qualified immigration advisers. They are denied access to any type of legal advice in a police station. Often, and unnecessarily, that sees individuals referred on to immigration removal centres, which clogs up immigration removal centres unnecessarily. They then have to make bail applications to the various immigration tribunals. Often people are then released on bail, only having identified for the first time that they have some kind of irregular immigration status.

Detention is used far too often—and for over-extended periods of time— unnecessarily. If a similar type of system was offered to immigration detainees as to people who face criminal offences in police stations, such as a duty solicitor scheme or a duty representative scheme for immigration issues, I certainly think there would be far fewer immigration detentions.

Martin Hoare: On fees, to make an application to stay in the United Kingdom for 30 months, one has to pay £1,033 at the moment. That may apply to people who have been working in the United Kingdom. If somebody had their leave to remain cancelled with no right of appeal, their option would be to make a new application. To do that, they would have to pay £1,033. If they did not have £1,033, they would face removal from the United Kingdom.

Another aspect of the fee system is that an applicant has to find, for a period of two and a half years, £1,000 to pay towards the NHS. When that was introduced, the rationale was that people who are living here illegally should not use the NHS. The scheme would apply to someone who had been here lawfully for seven and a half years paying tax and national insurance. If they want their last two and a half years in the United Kingdom, they have to pay another £1,000 for it. Over a period of 10 years, someone living in the United Kingdom perfectly lawfully and paying tax and national insurance has to find another £10,000 to fund the NHS.

[Caroline Nokes]

Q You both mentioned the anxiety that employers might have regarding somebody’s right to work. Do you regard the digital right-to-work checks as a step forward?

Martin Hoare: If employers understand that there is a digital check system, it would be a step forward. The people answering the checks are not infallible. The system is very complicated. If the wrong advice is given, there is no way for an employer to check that.

Another aspect I have come across in advising employers is that they cannot determine whether documents are genuine. A digitalised check does not address that properly. Employers find that, notwithstanding having conducted checks, they have unwittingly employed somebody with a document that looks fine when it is checked digitally but that is not fine. The employer then faces criminal sanctions as a result. That is happening to people.

[Caroline Nokes]

Q Do you not see the digital right-to-work check as a useful safety net to verify whether documents are genuine?

Martin Hoare: I think it is an improvement on nothing, but it is not perfect.

[Caroline Nokes]

Q You said that the EU settled status scheme required people to document every day of their existence in the UK.

Martin Hoare: No, I said “if” it did.

[Caroline Nokes]

Q Which, of course, it doesn’t. It requires people to evidence their identity and residence. We have seen from the testing phases that more than 80% of people have been able to do that with no additional documents, just by using their Her Majesty’s Revenue and Customs or Department for Work and Pensions records. Of course, it asks them to declare any criminal convictions. Do you think it is scaremongering a little to say “if” the EU settled status system required people to evidence every day of their existence, when it simply does not.

Martin Hoare: The results you refer to indicate that people who have applied have been granted either settled status or less than settled status.

[Caroline Nokes]

Q Pre, not less than.

Martin Hoare: Pre, which is less than. It is the same thing. That may be because people cannot document the earliest time in the United Kingdom, because notwithstanding their subjective compliance with employment rules, there are cases where tax and national insurance have not been credited by employers. It is not scaremongering—that is the factual reality for many people.

[Caroline Nokes]

Q You do know that in the first two testing phases, those employers were NHS trusts and universities, don’t you? We like to think that they would have credited the right amount of tax.

Martin Hoare: I accept that entirely, but that is not the point. The point is that it will extend to all employment in the United Kingdom.

[Caroline Nokes]

Q It absolutely will.

Martin Hoare: And in the scheme that has existed so far, there have been cases where people have paid tax and national insurance to their employer but it has not been credited. That has been a problem. Secondly, the results that have come back to the Home Office on tax and national insurance records are different from the results that people have obtained by their own freedom of information inquiries with the Revenue.

[Caroline Nokes]

Q You are conscious of the very high levels of people in the testing phases of the system who have reached either pre-settled or settled status—are you happy with that?

Martin Hoare: I am aware of it, but pre-settled status indicates that there is likely to be a component of those people who would be entitled to settled status, but because of deficiencies not of their own making with regard to the recording of their presence and economic activity, are given pre-settled status, which is lower.

[Caroline Nokes]

Q Which they can upgrade once they have got to five years, and at no extra cost even when there was a charge, but now there is no charge anyway.

Martin Hoare: The form says that there is a charge. At the end of the form, one is told that the charge that one has just paid will not be levied, but that still means that some people get less than they are entitled to. They have been here for more than five years, but the record-keeping system is not adequate so they are not given that to which they are entitled.

[Caroline Nokes]

Q How would you make it simpler?

Martin Hoare: The Home Office should have a degree of flexibility with regard to the assessment of evidence and should exercise more discretion where cases clearly are substantially satisfied.

[Caroline Nokes]

Q You are conscious that it is still in a testing mode?

Martin Hoare: Yes, of course I am conscious of that, but unless the existing parameters of decision making in the Home Office change, one will see further evidence of injustice arising from that process.

[The Chair]

I thank our two witnesses for the time you have spent with us. We are grateful.