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

Caroline Nokes Excerpts

Thursday 28th February 2019 Public Bill Committees

[Afzal Khan (Manchester, Gorton) (Lab)]

Briefly, in the light of the two earlier speakers declaring their interests, I declare that I am a solicitor and that I practised immigration law, although I do not do so currently.

[The Minister for Immigration (Caroline Nokes)]

It is a pleasure to serve under your chairmanship, Sir David. I thank the Opposition Members for their contribution to this debate. I put the name of the hon. Member for Torfaen at the top of this sheet of paper, but then I had to add all the other hon. Members because of their detailed and learned comments on legal aid.

Amendment 21 and new clause 36 are grouped together because, in essence, they cover the same ground. I recognise the issues that have been raised by hon. Members. The EU settlement scheme has been designed to be streamlined and user-friendly, and the majority of applicants will be able to apply without the need for general advice from a lawyer or advice on rights to enter or remain required as a result of the Bill. Indeed, feedback from the testing phases of the EU settlement scheme showed that most applicants found the application easy to complete.

For the most part, feedback from applicants in the vulnerable cohort has been positive, noting the speed of decisions in many cases and that it was easy to provide evidence of residence. Supporting vulnerable individuals to obtain UK immigration status is a core element of the delivery of the scheme, and we recognise that we need to reach out and support a wide range of vulnerable groups whose needs will vary, including the elderly, those who cannot access or are not confident with technology, and of course non-English speakers.

We are therefore putting in place safeguards to ensure that the EU settlement scheme is accessible and capable of handling vulnerable individuals with flexibility and care. That will include a range of direct support offered by the Home Office, such as assisted digital support and indirect support through third parties. As a practical example, we are providing grant funding of up to £9 million for voluntary and community organisations throughout the UK to support EU citizens who might need additional help when applying for their immigration status through the EU settlement scheme. The grant funding will help those organisations to inform vulnerable individuals about the need to apply for status and to support them in completing their applications under the scheme.

As the Committee heard at the oral evidence sessions, voluntary and community organisations such as the Children’s Society have been well engaged in the development of the settlement scheme. We are also working to ensure that local authorities have all the support that they need to ensure that looked-after children in their care will receive leave to remain under the EU settlement scheme. Caseworkers will provide support to ensure that applications are not turned down because of simple errors or omissions, and a principle of evidential flexibility will apply, enabling caseworkers to exercise discretion in favour of the applicant where appropriate. In short, the process has been designed with users in mind.

As an additional safeguard, legal aid will be available to some particularly vulnerable individuals. The Government have always been clear that publicly funded immigration legal advice is available for individuals identified as potential victims of human trafficking, modern slavery or domestic violence. We will also introduce legislation shortly to bring immigration matters for unaccompanied and separated migrant children into the scope of legal aid, meaning that that group will get support in securing their immigration rights.

In addition to that, legal aid may be available through the exceptional case funding scheme where the relevant criteria are met. As my right hon. Friend the Secretary of State for Justice announced in the House on 7 February, the Government will bring forward proposals to simplify the exceptional case funding application process and to improve the timeliness of funding determinations to ensure that those who need legal aid funding can access it when they need it.

The EU settlement scheme has been specifically designed to ensure that individuals can apply for settled status without the need for a lawyer. The Government have also committed to providing a range of safeguards to ensure that vulnerable individuals receive the assistance they need in securing their immigration rights. These safeguards will of course apply to vulnerable EEA and Swiss nationals. For those reasons, I hope that the hon. Member for Manchester, Gorton will withdraw amendment 21.

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[Caroline Nokes]

I thank the hon. Members for Manchester, Gorton and for Cumbernauld, Kilsyth and Kirkintilloch East for tabling amendments to clause 7. Amendments 32, 17, 38 and 39 focus on the commencement of the Bill. Amendment 32 is designed to make commencement of section 1 dependent on the Secretary of State’s commissioning an independent review of immigration legislation, with specific reference to the immigration rules, the public sector equality duty, certain provisions relating to the rights to work and rent, and data processing in the immigration arena.

When we voted to leave the European Union, the Government began a comprehensive review of legislation to identify issues that need addressing as a result of EU exit. I have worked with hon. Friends across the Government, including at the Ministry of Housing, Communities and Local Government and at the Department for Work and Pensions, to ensure that we are adequately prepared for the end of free movement.

The review required by amendment 32 is unnecessary, for several reasons. The Government take seriously their obligations under the public sector equality duty and the European convention on human rights and ensure that all elements of the immigration system comply with them. We will vigilantly monitor such requirements as we manage the transition of EEA nationals from free movement rights to having leave to remain under UK immigration law. In a deal scenario, the withdrawal agreement Bill will also deliver that.

In the unlikely event of no deal, the power in clause 4 of the Bill before us will be used to ensure that any issues arising from the ending of free movement can be adequately addressed, principally by making transitional and saving arrangements for existing EEA residents and those who arrive before the new system commences. For example, the process for EEA nationals to prove their right to work, and for employers to check that right, will not change until January 2021. The design of the future system will similarly comply with human rights and equalities duties.

The immigration exemption at paragraph 4 of schedule 2 to the Data Protection Act 2018 was subject to significant scrutiny in both Houses before it came into force in May 2018. It is a necessary and proportionate measure, which we believe is compliant with the general data protection regulation. It can be applied only on a case-by-case basis in limited circumstances in which complying with a certain data protection right would be likely to prejudice the maintenance of effective immigration control. It is also subject to oversight by the Information Commissioner.

I hope that hon. Members can see that we already take into account the relevant safeguards and human rights considerations, and that the amendment is therefore unnecessary.

Amendment 17 would make commencement of part 1 of the Bill dependent on the Secretary of State’s implementing all recommendations in the Law Commission’s review of the immigration rules that relate to persons losing their free movement rights—namely, EEA and Swiss nationals and their family members. As you may recall, Sir David, from the evidence sessions, when this cropped up, the Home Office worked closely with the Law Commission to discuss the remit of the project back in 2017. We all agreed that that was to be the simplification of the immigration rules. We agreed with the Law Commission that it would use the project to seek to identify the underlying causes of complexity in the rules, and that it would conclude with a report setting out recommendations to improve them for the future. My right hon. Friend the Home Secretary and I are pleased with that approach and look forward to reading the final report.

The Law Commission published on 21 January 2019 an initial consultation paper that seeks the views of consultees on preliminary proposals and asks consultees a number of open questions. The consultation is still open; it will not close until 26 April 2019. After the period of consultation, the Law Commission will analyse the results, and it will not deliver its recommendations until its final report later this year.

I hugely appreciate the research that the Law Commission is doing. I agree, and I believe that I have said in this Committee previously, that the immigration rules, totalling more than 1,000 pages, are too long and can be difficult and complex to use. However, I cannot support an amendment that would commit both Parliament and the Home Office to implementing fully proposals that have not even been written yet. The Home Secretary and I want to simplify the immigration rules and we will consider the Law Commission’s recommendations as part of that process. Also, we will not only consider recommendations that relate to those who, under the provisions of the Bill, will lose their right to free movement. We want to simplify the system for all who come into contact with the immigration rules, not just a specific cohort of people.

Furthermore, it is important for the Secretary of State to be able to determine when certain clauses commence, so that we can cater for specific scenarios linked to our departure from the European Union. For example, we may need to bring these provisions into force at the end of an agreed implementation period in a deal scenario, or sooner in the event of no deal. That may require us to bring clauses in part 1 into force before the Law Commission has had a chance to deliver its final report. I ask the hon. Member for Manchester, Gorton not to press either of his amendments, for the reasons outlined.

Turning to amendments 38 and 39, I thank the hon. Member for Cumbernauld, Kilsyth and Kirkintilloch East for giving me the opportunity to discuss these issues. While the Government’s priority is to leave the EU with a deal, we must continue to prepare for all scenarios, including the possibility that we leave without any deal in March 2019. Amendment 38 would hinder our ability to prepare adequately for that. Conducting the review proposed in that amendment would be likely to take some time, and thus would very likely delay the end of free movement. We received a clear message in the referendum of 2016 that free movement should end, and this amendment would leave us unable to deliver promptly on that in a no-deal scenario.

Furthermore, the Government do not think that such a review is necessary. Under section 6 of the Human Rights Act 1998, the Secretary of State is under an obligation to comply with the European convention on human rights in exercising all his functions, including when making immigration policy, when making specific immigration decisions, and when making immigration rules under section 3 of the Immigration Act 1971. The convention rights are already taken into account each and every time we make or amend the immigration rules. I reassure hon. Members that ensuring the welfare of migrants is at the forefront of our thinking for the design of the new immigration system. As such, I hope hon. Members can see that we already take into account the relevant safeguards and human rights considerations, and that amendment 38 is not necessary.

Amendment 39 gives me the opportunity to restate the importance of the immigration exemption within the Data Protection Act 2018. The immigration exemption came into force in May 2018. It was widely debated in both Houses and reassurances were repeatedly given on the scope and potential use of the exemption. The UK generally processes immigration matters under the EU general data protection regulation, commonly known as the GDPR, because the UK generally treats immigration as a civil administrative function, not a policing matter. We have made a deliberate choice to deal with many immigration offences under administrative rather than criminal sanctions.

If the exemption were repealed for EEA nationals who were exercising free movement rights on the date when part 1 of the Bill came into force, the consequence of this amendment, as drafted, would be to place us in a position where in theory EEA nationals, even though by then subject to domestic immigration law, would be treated more favourably than migrants coming from the rest of the world. I find that situation divisive and discriminatory.

Immigration is naturally a sensitive subject area and a topic of huge importance to the public, to the economic wellbeing of the country and to social cohesion. Being able to effectively control immigration is therefore, in the words of the GDPR,

“an important objective of general public interest”.

The new data protection regime gives broader rights to data subjects, which this Government welcome, but it is also important that we make use of the limited exemptions available to us, so that we can continue to maintain effective control of the immigration system in the wider public interest. We have done that within the parameters set down in the GDPR.

[Tracey Crouch (Chatham and Aylesford) (Con)]

My right hon. Friend is making an excellent speech. That is one of the challenges that we parliamentarians face. It is important to recognise that there are sensitivities around the issue of immigration, but in many respects we have reneged on some of our responsibilities by not having a sensible debate about having a country that is open and welcoming to those who wish to come and live and work here, while at the same time having an immigration system that works for everyone, including those who are here and those who want to come here in the future.

[Caroline Nokes]

My hon. Friend makes an important point. As with so much in immigration, it is important that we get the balance right. I have been concerned that there has been much scaremongering in recent months that the immigration exemption would be used by the Home Office to deny individuals rights in a sweeping way, or as an excuse for not providing reasons for the refusal of cases. That is simply not true.

The exemption as set out in the legislation is not a blanket exemption that can be used to deny rights in a sweeping way; it does not target any particular group or individual. There are very clear tests to be met. The immigration exemption is only applied on a case-by-case basis, and only where complying with certain rights would be likely to prejudice the maintenance of effective immigration control. We must be able to satisfy the prejudice test set out in the Data Protection Act before it can be used. The data subject may assert their rights through the Information Commissioner’s office and the courts, if that individual believes that an exemption has been wrongly applied.

The immigration exemption is entirely separate from measures designed to deal with ending the free movement of EEA nationals. It is a necessary and proportionate measure, which we believe is compliant with GDPR—a regulation introduced by the European Union that applies to all member states. I can categorically assure hon. Members that it is not aimed at EEA nationals and, in compliance with our public sector equality duty, it must be applied in a lawful and non-discriminatory manner. I hope that in the light of these points, the hon. Member for Manchester, Gorton will withdraw the amendment.

[Afzal Khan]

I thank the Minister for her assessment, but I am not totally satisfied, so I wish to press the amendment to a Division.

Question put, That the amendment be made.

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[Afzal Khan]

I thank my hon. Friend for tabling the amendment and I heartily support all that she has said about it. Last Tuesday, I also gave reasons why I feel that the Bill disproportionately affects women. Therefore, we will support the amendment.

[Caroline Nokes]

I, too, thank the hon. Member for Stretford and Urmston for tabling the amendment, because it gives me the opportunity to confirm that gender impact and gender equality are important issues that must be taken into account across Government policy. Of course, that applies to all protected characteristics under the Equality Act 2010.

The UK has a long-standing tradition of ensuring that our rights and liberties are protected domestically and of fulfilling our international human rights obligations. The Government are committed to complying with their public sector equality duty under section 149 of the 2010 Act. Furthermore, the Government have been clear that all protections in and under the Equality Acts 2010 and 2006, and the equivalent legislation in Northern Ireland, will continue to apply after we leave the EU. We will not renege on our strong equalities and workers’ rights commitments.

As such, we published two policy equality statements alongside the introduction of the Bill, one on immigration and one on the social security aspects of the Bill. Both of those considered the potential gender impacts of the Bill. However, as the Committee is aware, the Bill is a framework Bill, and its core focus is to end free movement. As set out in the policy equality statement on the immigration measures in the Bill, the resident population of EU nationals is estimated to be roughly half male and half female, as the hon. Lady said. As a consequence, we do not think that ending free movement will discriminate on the grounds of sex, and there is nothing further to suggest that it will have a particular impact based on gender. However, we cannot predict the volume and pattern of migration post EU exit, because the future arrangements that will replace free movement have not yet been finalised.

[Alison McGovern (Wirral South) (Lab)]

The Minister is repeating the Government’s position that either the impact of the Bill will be split 50/50, just like the population, or we simply do not know because we have no idea what immigration will be like in the future. Is it not the case that on the whole, women are paid less by men—I meant to say paid less than men—and that we are moving into a situation in which the amount that a person gets paid has an important impact on their rights as a citizen?

[Caroline Nokes]

I thank the hon. Lady for her intervention. I fear she made a somewhat Freudian slip when she said that women are paid less by men, but I am inclined to agree with her on that point; it is what the gender pay gap tells us.

The hon. Lady makes an important point. When we are considering the future immigration system as part of our conversations about the White Paper and as the immigration rules come forward, we have to consider these issues. However, as I have repeatedly said, this is a framework Bill; its only purpose is to end free movement. As part of our engagement on the proposals in the White Paper, we will have to look seriously at the impact on all protected characteristics, not simply gender. As the hon. Lady has pointed out, it is difficult at this stage to assess the impacts of ending free movement. For that reason, as set out in our published policy equality statement on the immigration measures in this Bill, we have committed to consider all equalities issues carefully as the policies are being developed. The policies will receive equalities impact assessments, and those assessments will be published.

The Government are committed to implementing a fair and transparent immigration system that complies with the equality duty. The social security co-ordination clause is an enabling power, allowing changes to be made to the retained social security regime via secondary legislation. Details of policy changes will be set out in the regulations that will follow, and those regulations will also be scrutinised by Parliament via the affirmative procedure. The policy equality statement on that clause was also published when the Bill was introduced. It looked at the demographics and protected characteristics of those who currently export benefits in the EEA, including their gender. In the policy equality statement, we have committed to consider the impacts throughout the policy development process. The Government will consider the impacts of any future change on the retained social security co-ordination regime in line with the public sector equality duty.

I hope that I have addressed the concerns of the hon. Member for Stretford and Urmston. I ask her to withdraw her amendment, for the reasons I have outlined.

[Kate Green]

I am grateful to the Minister for her response, and I take some reassurance from her words. She has made it clear that over the rest of this year, as part of the engagement on the White Paper, particular attention will be paid to engaging on the equalities effect of its proposals, and that equality impact assessments will be produced, published and fully available as individual policies are developed. I also take some comfort from the Minister’s words about her awareness of the need to consider the equality impact assessments, including the gender impact of the provisions of clause 5 if the delegated powers in that clause are used to make changes to the social security regulations. In those circumstances, knowing that the Minister takes these matters extremely seriously, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

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Even if there is such a scheme, our preference is for amendment 16 to be enacted, because it will ensure that the maximum number of people will have registered for proof of their right to be here before free movement is repealed, making it less likely that they will be denied services, housing or the right to vote, even though they were their right.

[Caroline Nokes]

I thank the hon. Member for Manchester, Gorton for his explanation of the amendments. I will take each one in turn.

Amendment 16 seeks a further debate on the issue of Windrush. It is absolutely right that we deliver on our promise to the people of the UK and legislate to end free movement. It is, further, right that in implementing a future system we must learn the lessons of Windrush. I agree with the hon. Gentleman that that is a crucial point, and that is why, as highlighted on Second Reading, the Government have put in place a number of measures to address it. However, as I have said, we have made a commitment to end free movement and the core purpose of the Bill is to deliver on that purpose. The amendment would put conditions on its implementation, and that is unacceptable. It would have the effect of hindering the Government in that objective, which stems from the EU referendum outcome.

It is essential that the Government can implement change as soon as is practically possible following the UK’s exit from the EU. Part of that change is already in train through the EU settlement scheme. We have been clear that securing the rights of EEA citizens has always been our priority, and we have delivered on that commitment through the implementation of the scheme.

We know that some members of the Windrush generation became caught up in measures intended to tackle illegal migration, because they did not hold the documentation necessary to demonstrate that they could access the benefits and services to which they were entitled. To remedy that, a taskforce was established last April to provide support to members of the Windrush generation who needed documentation to prove their status. The taskforce has issued documentation to more than 2,400 people, who can now demonstrate their right to live in the UK. A further 610 people have subsequently been supported through the Windrush scheme application process. More than 3,400 people have successfully applied for British citizenship under the Windrush scheme.

The Home Office has taken a number of other significant steps to right the wrongs experienced by some members of the Windrush generation. Those steps include the compensation scheme, the details of which have been consulted upon; the result will be announced shortly. In addition, we have commissioned an independent lessons learned review, which has contacted a wide variety of religious and community groups for their input. The review will consider what were the key policy and operational decisions that led to members of the Windrush generation becoming entangled in measures designed for illegal immigrants; what other factors played a part; why the issues were not identified sooner; what lessons the organisation can learn to ensure that it does things differently in future; whether adequate corrective measures are now in place; and an assessment of the initial impact of those measures.

We are committed to taking into account the outcome of the review in designing the future borders and immigration system. The Department is also conducting a review of historical cases, and has therefore already committed significant resources to this work.

[Stuart C. McDonald]

The Minister will be aware that the National Audit Office has been critical of the scope of the review of historical cases and has, in particular, urged the Department to widen the scope of the review to include all individuals who could be in a similar situation to those from the Caribbean—so, people of other nationalities as well. Is the Home Office willing to consider that?

[Caroline Nokes]

Obviously, the Home Office is obliged to consider the comments of the National Audit Office, and it is doing so very carefully.

In addition to the resources committed to this work, the Government are also obliged to look to end free movement as soon as is practically possible. That is the first step in establishing a future border and immigration system that works for the whole United Kingdom. Amendment 23 would amend the commencement provisions in the Bill. The amendment would make the commencement of clause 1, which ends free movement, and clause 5—the social security provision—dependent on 3 million people having applied for, and been granted, status under the EU settlement scheme.

We are committed to securing the rights of resident EU citizens, and we have delivered that through the EU settlement scheme, which will enable us to grant settled or pre-settled status to European economic area nationals and their family members in the UK before EU exit, regardless of whether or not the UK leaves the EU with a deal.

I am pleased that the hon. Member for Manchester, Gorton supports the settlement scheme, and I hope that he and all other Members are encouraging EU nationals resident in their constituencies to apply. However, setting a target for the number of applications that must be reached before the Bill comes into force is not appropriate, for a number of reasons. First, we already have a generous deadline for applications to the scheme, which acts as an incentive for the resident population to apply. Using the power in clause 4, we will ensure that their status is protected before that deadline, so that their rights remain unchanged immediately after exit, avoiding any cliff edge.

Clearly, the EU and the UK commonly agreed that a deadline was the right approach when they provided for it in article 18 of the draft withdrawal agreement. We have been clear about what the deadline will be in both a deal and a no-deal scenario. According to the annual population survey, it is currently estimated that around 3 million EEA nationals are resident in the UK, but even that might well be an underestimate. It would be irresponsible to repeal free movement just because 3 million applications had been granted, which could easily happen before the proposed deadline. A date deadline is public and clearly understood. People can plan their affairs around it in a way that they cannot with an arbitrary figure such as the one proposed in the amendment.

[Stuart C. McDonald]

That is a slightly unfair characterisation of the amendment, which does not say that we would have to end free movement when the 3 million threshold had been met. We could still wait until the deadline that the Government have imposed. The amendment simply says that the Government should not implement the end of free movement until that number of people have been registered.

[Caroline Nokes]

It is still the Home Office’s position that we regard that as an arbitrary figure. We believe that a deadline that is set as a date is much more easily understood by individuals.

We are running an extensive communications campaign to ensure that people are aware of the need to apply. We are using all available channels to reach our audience, and last year targeted online advertising alone reached more than 2 million people. Our communications activity will be even more visible in the coming months, and we will shortly launch a wide-ranging marketing campaign that will encourage EU citizens to apply when the scheme is fully open. Nobody will be left behind, however, and we are working in partnership with vulnerable group representatives to ensure that we reach everyone. We expect the large majority of EEA nationals to have been granted status by the deadline, but if a person has good reasons for missing the deadline, we will be able to protect their status and enable them to apply afterwards.

Secondly, by requiring 3 million EU citizens to be granted settled status before the Bill can come into force and lay the ground for the future immigration system, we are presupposing that all resident EU citizens will receive indefinite leave to remain, which is what settled status refers to. That does not take into account the fact that some resident EU citizens may not need to apply for settled status. Some may want to leave the UK before the deadline; some will have arrived pre-1973 and already have indefinite leave to remain; and some may want to apply for British citizenship instead.

A significant proportion of EEA nationals who are eligible to apply under the settlement scheme will not have been continuously resident in the UK for five years, so they will not be entitled to settled status. They will be issued with pre-settled status, which gives them limited leave to remain, rather than indefinite leave. Some may then leave the UK without staying to complete the five years continuous residence required for a grant of settled status.

The date on which free movement could be repealed, or retained social security co-ordination legislation amended, would therefore be highly uncertain and operationally unworkable as a result of the amendment. The decision about whether free movement ended would be left solely in the hands of those EEA nationals. To prevent free movement from coming to an end through the Bill, they could simply refuse to apply under the EU settlement scheme, knowing that, as a consequence, free movement would not end.

That would be the antithesis of taking back control. It would put the future immigration system in the hands not of the Government or the British people, but of EU nationals who had already exercised their free movement rights and whose rights were protected, but who could prevent us from ending free movement and delivering on the outcome of the referendum.

Finally, it makes no sense to restrict the commencement of the social security co-ordination provisions in clause 5 based on the number of people who are granted settled status. Rights under the social security co-ordination regulations—for example, the right to aggregate to meet domestic entitlement for specific benefits—are not connected to the grant of leave under the EU settlement scheme. I therefore ask the hon. Member for Manchester, Gorton to withdraw his amendment.

[Afzal Khan]

I thank the Minister for her statement. I am minded to press amendment 16 to a vote, but not amendment 23.

Question put, That the amendment be made.

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[Afzal Khan]

We support the proposals. Overall, the sweeping provisions in clause 4(5) provide limitless scope for the Government to change fees and charges. The immigration health surcharge was already doubled from £200 to £400 a year by the Immigration (Health Charge) (Amendment) Order 2018, which Labour voted against. There is nothing to stop the Government doubling it again. The whole idea of an immigration health surcharge is pretty dubious, because the migrants who are forced to pay the charges are already paying large sums of money in tax and national insurance contributions. Some of them may even be working in the NHS, so they are paying a double tax for a service that they are helping to deliver.

[Caroline Nokes]

I am grateful to the hon. Members for Cumbernauld, Kilsyth and Kirkintilloch East and for Paisley and Renfrewshire North for tabling these amendments on migrants’ access to healthcare in the United Kingdom. I am also grateful to the hon. Member for Wolverhampton South West for tabling her new clause. Given their similar effects, I will consider them together.

The Government have been very clear in everything we have said since the referendum that, although the United Kingdom will be leaving the European Union, we are certainly not leaving Europe. Our relations with the European Union and the whole of the EEA will continue to be close and cordial. As part of that, immigration from the EEA will certainly continue. We want EEA citizens, who have contributed so much to our society, to continue living and working in the United Kingdom. While they are here, they will of course need access to healthcare. We are fortunate in this country to have a world-class health system, thanks to the NHS. The proposals, in different ways, would exempt EEA and Swiss citizens from the requirement to pay for healthcare in the UK. However, they are unnecessary.

Amendment 37 and new clause 12 are also technically deficient, because they do not reflect the nature of devolved health legislation. Entitlement to free-of-charge NHS care is not, and should not be, based on nationality. It is based on a concept of ordinary residence in the United Kingdom. For EEA nationals, that means living in the UK on a

“lawful…properly settled basis for the time being.”

I thank hon. Members for their comments on specific proposals, and I will make a number of points. Operating fair and proportionate controls on access to the NHS is not about outsourcing immigration control; it is about protecting a vital taxpayer-funded service from potential misuse. The Department of Health and Social Care’s policy of up-front NHS charging for non-urgent treatment for overseas visitors was upheld by the courts in a judicial review last year. Treatment for specified public health conditions, such as the infectious diseases mentioned earlier, is not subject to overseas visitor charges.

The hon. Member for Wolverhampton South West asked whether it was fair that EEA nationals should pay the health charge, given that they would pay for the NHS via taxes and national insurance contributions. Whether EEA nationals pay the health charge following the introduction of the new skills-based immigration may depend on the outcome of our negotiations with the EU about our future relationship. The health charge currently applies only to non-EEA temporary migrants. Although some non-EEA nationals will pay tax and national insurance contributions, they will not have made the same financial contribution to the NHS that most UK nationals and permanent residents have made or will continue to make over the course of their working lives. It is therefore fair to require them to make an up-front and proportionate contribution to the NHS.

When we debated this in Committee some months ago, the issue of the level of contribution was raised, and it has been again this afternoon. The Department of Health and Social Care undertook a careful study with NHS England of the NHS resources that temporary migrants to this country generally used over the course of a year. It came out in the region of £470 per individual. I hope that hon. Members will note that the immigration health charge is set below that level at £400 per person, or the reduced rate of £300 per year for students and those on youth mobility schemes.

The hon. Member for Stretford and Urmston raised maternity care. The Department of Health and Social Care is responsible for guidance on overseas visitor charges in England. Maternity care is always urgent and must never be withheld pending payment. That is clear in the Department of Health and Social Care’s guidance. However, charges are applied to protect maternity services for those entitled to live in this country.

The hon. Lady asked whether I would speak to DHSC Ministers about the review of charges, which I understand has not yet been published. I am happy to make that representation to my fellow Ministers.

[Maria Caulfield]

I thank the Minister for giving way; I know I have made a number of interventions now. Does it sound fair that Opposition Members are asking low-paid UK taxpayers to underpin the NHS services for EEA migrants, given that they often struggle to pay their tax and national insurance? Does she agree that, given that the health service is struggling to pay for drugs such as Orkambi for cystic fibrosis patients, it cannot afford to take on free healthcare for EEA nationals too?

[Caroline Nokes]

My hon. Friend makes an important point, which underpins the immigration health surcharge. The Government took the view, and in successive general elections made it very clear, that we would continue to implement and, indeed, increase the immigration health surcharge. As I said, this is a matter for EEA nationals and is still for negotiation as part of our future relationship.

[Afzal Khan]

Does the Minister agree that it is also true that EU citizens are more likely to provide health services than receive them, and are more likely to be young and therefore need fewer NHS services?

[Caroline Nokes]

I thank the hon. Gentleman for his comments. I cannot comment on the demographics of EU citizens. We know that those who are the most mobile in the labour force tend to be the youngest. He is right to comment on the valuable contribution that many EEA citizens make to our national health service. It was argued with me in the Chamber some months ago that there was a Brexodus of EU nationals from our health service, and I was assured by the then Minister in the Department of Health and Social Care that there are now 4,000 more EU nationals working in our NHS than there were at the time of the referendum in 2016.

[Gavin Newlands (Paisley and Renfrewshire North) (SNP)]

Just a small point on the statistics that the Minister cited. In the last year, there has been a 90% drop in the number of nurses coming from the EU to work in the UK.

[Caroline Nokes]

That gives me a marvellous opportunity—I might have to look at my hand to check the statistics—to say that the net migration statistics came out this morning; very hot off the press. Net migration of EU citizens to this country is still positive. The hon. Gentleman makes the point that there has been a drop-off, but we have seen—this gave me significant reassurance—that among the EU citizens who have been living and working here and exercising their right to free movement over the past year or so, the level of emigration is absolutely static. That gave me at least one statistic to cite, which is that 57,000 more EU citizens have come here over the past 12 months than have left.

[Paul Blomfield (Sheffield Central) (Lab)]

The Minister is, of course, right about the number that she has read from her hand—I have it on my phone as well—but she will know that that number is a 10-year low, and that there has also been a 14-year high in non-EU net migration. Overall, net migration has changed very little, and I wonder where that fits into the Government’s narrative of taking back control of our borders.

[Caroline Nokes]

I emphasise the points that I made following the publication of the net migration statistic. A significant proportion of the increase that we have seen is made up of students coming from outside the EU, including significant increases in the numbers of Indian and Chinese students coming to our world-class universities. The hon. Gentleman will know that there is no limit to the number of tier 4 visas that we are happy to issue to genuine students and, in the case of universities, there has been a 10% increase in the past year. That puts the figure in the region of 26% higher than in 2010-11.

In addition—this is very topical in the context of this amendment, since we are discussing health; I am sure this gets me back in order, Sir David—the hon. Gentleman will remember that in July of last year, we lifted the cap on doctors and nurses being able to come in under the tier 2 regulations. There has been a significant increase in the number of doctors and nurses—those working in the health sector—making applications under that system. While I acknowledge the importance of working hard to make sure that we have adequate numbers of UK-trained doctors and nurses, that was a very popular move. It was impressed on us, not only by many political parties but by those in the professions, that it was important that we lift the cap on tier 2 visas for those who work in the NHS.

EEA and Swiss nationals and their family members who are, or become, ordinarily resident in the UK are currently fully entitled to free NHS care, in the same way as a British citizen who is ordinarily resident. That position will not change, regardless of whether the UK leaves the EU with or without a deal. The Government are also currently working to reach agreement at EU level, or through agreements with relevant member states, to continue the reciprocal healthcare arrangements that are already in place and are so beneficial to UK and EU nationals alike while we negotiate our future relationship. We are making progress: we have already agreed reciprocal arrangements with Switzerland, Iceland, Liechtenstein and Norway. Those arrangements safeguard healthcare for the hundreds of thousands of UK nationals who live and work in EU countries, or who require emergency medical treatment each year while on holiday in Europe. They also ensure that EU citizens who are not ordinarily resident in the UK—primarily those on holiday—can receive reciprocal healthcare here.

It is also worth reflecting on the fact that both health and charging for health services are devolved matters. With the exception of new clause 42, these amendments seek to amend devolved health policy. However, the health Ministries in Scotland, Wales and Northern Ireland and the Department of Health and Social Care in England are responsible for setting their own charging policy and making their own regulations.

[Nick Thomas-Symonds]

I am glad that the Minister has come to the topic of devolution of the health service in Wales. It was, of course, somebody Welsh who founded the national health service—Aneurin Bevan—and on the subject of health tourism, which has been raised by the hon. Member for Lewes, Aneurin Bevan said:

“One of the consequences of the universality of the British Health Service is the free treatment of foreign visitors. This has given rise to a great deal of criticism, most of it ill-informed and some of it deliberately mischievous…The fact is, of course, that visitors to Britain subscribe to the national revenues as soon as they start consuming”.

This was, he said, an area in which

“generosity and convenience march together.”

Is that not true?

[Caroline Nokes]

I am not going to criticise the founder of the national health service, who made a huge contribution to our national life in so doing, but it is important to reflect on the fact that in successive general elections people have supported the principle that those who are here on temporary visas should contribute. As I was saying, the devolved authorities do of course have the ability to set their own charging policies and make their own regulations.