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

Caroline Nokes Excerpts

Tuesday 5th March 2019 Public Bill Committees

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

I rise briefly to raise a specific issue that a constituent has brought to me, but also to recognise that the Home Office has done a significant amount of work to reduce the time people are in detention. I am sure members of the Committee are aware that 42% of detainees spend between one and 28 days in detention, which is much better than in 2017, when it was only 30%. However, the statistics show that 33% still spend one to three months in detention, and 13% still spend three to six months in detention. I have sympathy with a new clause that limits detention time, although I still need to be persuaded on the issue of excluding foreign national offenders.

From the evidence session and the questions that Tory colleagues asked, I recognise that there is a measure of sympathy on this issue. The hon. Member for Manchester, Gorton was correct when he talked about the impact on mental health, and there are colleagues who recognise that detention has a damaging impact on people’s mental health. Whether there is indefinite detention or a specific time limit is something that still needs to be discussed, although I am aware that in the public health, counter-terrorism and criminal justice systems, where individuals face the possibility of detention without charge, 28 days or lower is considered sufficient time. There is further debate needed as to whether it has to be 28 days, or whether it could be 30 or 40 days. That is an issue we still need to consider carefully.

My constituent Dane Buckley is the support services co-ordinator for the UK Lesbian & Gay Immigration Group and specifically wanted me to raise the issue of detention of lesbian, gay, bisexual, transgender, queer, intersex + people. I am sure that the Minister is aware that in 2016 UKLGIG and Stonewall published research, called “No Safe Refuge”, on the experiences of LGBTQI+ people seeking asylum while in detention. The report highlights the systemic discrimination, abuse and harassment that they face from staff and people who have been detained. It contains shocking examples of acts committed by fellow detainees and staff, and incidents where staff have failed to protect individuals.

In June 2016 the UN special rapporteur on torture and other cruel, inhuman or degrading treatment or punishment, alongside the chair of the UN Committee against Torture and the chair of the board of trustees of the UN voluntary fund for victims of torture, called on member states to redouble their efforts to prevent ill treatment or torture of LGBTQI+ people in places of detention. The ninth annual report of the sub-committee on prevention of torture and other cruel, inhuman or degrading treatment or punishment raised similar concerns, stating that LGBTQI+ people were

“at the bottom of the hierarchy”

in detention. I think we are all acutely conscious of the vulnerability of LGB asylum seekers in detention, and recent court cases have asserted that.

My constituent suggests that detention has a direct impact on the prospects of LGBTQI+ people to claim asylum successfully. To convince the Home Office or a tribunal that they are LGBTQI+ as claimed, asylum seekers must be in a situation of trust and security, in which to consider and discuss their sexual orientation or gender identity. That can be extremely difficult if someone comes from a country where persecution has meant they have never spoken about their sexual orientation or gender identity, or if they have experienced trauma. It can be an impossible task in detention, where fear of discrimination or harassment requires them to conceal their identity as much as possible. In obtaining a legal aid lawyer, people are limited to the specific contractors for each detention centre. With the greatest respect, those advisers do not necessarily have the specialist knowledge required for asylum claims based on sexual orientation or gender identity.

Added to that is the difficulty in amassing the kind of corroborating evidence that decision makers routinely expect when someone is in detention, especially if the person is trying to avoid being outed to staff and other detainees. Home Office caseworkers and decision makers frequently ask, or indeed expect, LGBTQI+ asylum seekers to offer witnesses, including ex-lovers, who will attest to knowledge that the asylum seeker is LGBTQI+ as claimed. Clearly that can be incredibly difficult if the person does not live openly in their home country because of the fear of persecution. An additional issue is the fact that the Government do not keep statistics on the number of LGBTQI+ people who are detained. Perhaps the Minister could address that.

I wanted to raise that particularly sensitive issue of sexual or gender orientation of people in detention on behalf of my constituent and to offer sympathetic support to the idea of making sure there is a time limit on detention, for the mental health and wellbeing of those detained. Whether that is 28 days is a matter that still needs to be bolted down, but I do not personally support including foreign national offenders in that; we still need to consider that further.

[The Minister for Immigration (Caroline Nokes)]

I am grateful to the hon. Member for Manchester, Gorton for tabling the new clauses. I note that they are supported by other right hon. and hon. Members, including other members of the Committee. I am grateful to those who have spoken.

The new clauses raise an incredibly important issue, and I am grateful for the opportunity to speak about immigration detention. We certainly do not take the issue lightly, and we recognise that the deprivation of liberty for immigration purposes is a significant use of state power, with potentially life-changing implications for those involved. It is vital to have a detention system that is fair to those who may be detained, that upholds our immigration policies, and that acts as a deterrent to those who might seek to frustrate those policies. At the same time, the welfare of detainees is a priority for us, and we believe that the use of detention should always be open to scrutiny and, indeed, reform.

--- Later in debate ---

[Stuart C. McDonald]

That argument was made by successive Ministers, but the idea that there is no indefinite detention because Home Office guidance says somebody cannot be detained forever is nonsense. Folk do not know how long they are being detained for; that is what is harmful —indeed, it is harmful for everyone, whether or not they are detained for more or less than 28 days. There is indefinite detention—this is surely a matter of semantics.

[Caroline Nokes]

I do not think it is a matter of semantics. Since becoming Minister, I have been careful to ensure that, in cases when people have been in detention for a long time—there are some, and they are almost exclusively cases of foreign national offenders—we regularly review and carefully consider the circumstances of those whom we seek to remove from the country but whom, for reasons of public protection, we deem it would not be appropriate to manage in the community. Last year, 92% of those detained left detention within four months, and 69% in less than 29 days, which demonstrates our commitment in this regard.

[Stuart C. McDonald]

We are still talking about huge numbers of people—I think 10,000 or so were detained for over 28 days in 2017—but this is not just about those detained for more than 28 days. Whether people are detained for five, 10, 15 or 20 days, not know when they are getting out is harmful to their mental health, so this applies to everybody in detention.

[Caroline Nokes]

I thank the hon. Gentleman for making that point. I am conscious that there are strong feelings on this issue. I am also conscious that in this country we have an ability to remove that in some cases is significantly better than that of our European counterparts and that we do succeed in removing people directly from detention. However, there are a number of challenges, which I will come to.

One significant challenge, and why I have such grave concerns about 28 days, is the time that it often takes to document individuals who may not have evidence of their identity or a travel document from their home country. It would be ideal if we could document people easily without their needing to be present, but unfortunately the vast majority of cases will require a visit from a foreign consulate, which takes time to arrange. In many instances, foreign consulates will not consider a visit until they know the individual is in detention. Although these are only management statistics, it has been indicated to me that it takes in the region of 30 days for an individual to be documented. In those circumstances, when it takes in the region of 30 days to get somebody with the appropriate travel document to be able to return, a time limit of 28 days would simply be unworkable.

[Nic Dakin]

The Minister is making a good point in response to the hon. Member for Cumbernauld, Kilsyth and Kirkintilloch East, but is she indicating that some sort of time limit that was practical would be helpful to everybody?

[Caroline Nokes]

I will come to time limits. We have seen from the amendments that have been tabled and from the commentary that there is no widespread agreement on what the time limit should be. If we look at countries around the European Union, there are differing time limits. One example that springs instantly to mind currently has a limit of 45 days, which is about to be doubled to 90 days.

Stephen Shaw looked at time limits in his re-review and made some comments about that, as Members will have seen. There is certainly scope, as I am sure my right hon. Friend the Home Secretary agrees, for us to look closely not only at different time limits around the world, useful though they are, but at some of the challenges we face in the UK with the documentation of individuals, so that we can best understand, were a time limit to be introduced, what the range might be.

[Afzal Khan]

The Minister referred to European countries. Is it not important to acknowledge the difference between two legal systems? The European system is more civil law-based, whereas others are more common law-based. They are not the same thing.

[Caroline Nokes]

The hon. Gentleman is absolutely right to point out that they are not the same thing. While we might draw on the experience and evidence from other countries, it is important that we have a system that works within our own legal system.

[Paul Blomfield]

The Minister was talking about expert evidence and the importance of the view of our legal system. Does she note that the Bar Council recommends a 28-day time limit?

[Caroline Nokes]

I certainly welcome the Bar Council’s views feeding into this debate. However, very few countries have a time limit as short as those proposed in these new clauses. While some have time limits, recognising the practical challenges in effecting successful returns, some are looking at the issue again.

For example, the European Commission has recently proposed a new detention time limit of at least three months to give member states sufficient time to carry out return operations. In comparison with other countries, the UK performs well in achieving the removal of individuals who have no right to stay. I agree with Stephen Shaw when he said that he had yet to see a coherent account of how a proposal for 28 days had been reached. That different time limits have been proposed in different amendments shows that identifying an appropriate time limit might not necessarily be a simple exercise.

[Maria Caulfield (Lewes) (Con)]

My hon. Friend the Minister is saying that there seems to be a growing cross-party consensus on the issue of a time limit. Does she not agree, therefore, that it would be wise to take this back to the Floor of the House before making a final decision on a time limit that could be accepted?

[Caroline Nokes]

I thank my hon. Friend for that intervention. I suspect that she is correct that, ultimately, we might decide this matter on the Floor of the House. It is important that we reflect carefully on the evidence and weigh our own practical and legal considerations. While I am as one with Stephen Shaw when he makes his commentary on 28 days, I have heard representations from Members in this Committee and more widely as well. We have heard reference to my right hon. Friend the Member for Meriden, who has been forceful on this issue, and to the right hon. and learned Member for Camberwell and Peckham (Ms Harman), who had me before her Committee towards the tail end of last year. We had a useful and constructive conversation around detention.

It is well documented and reported in the media how much I enjoy a Select Committee appearance—that one I actually did. I felt it was constructive, Members had given the issue significant thought, and we had a constructive conversation. I am aware of the amendment tabled by the right hon. and learned Member for Camberwell and Peckham that has been supported by many Members from this side of the House with much enthusiasm and determination.

[Nick Thomas-Symonds]

The argument the Minister is using is about the length of time and the limit. Can we take it from her that she is not opposed to the principle of having a limit, even though there may be debate about its length?

[Caroline Nokes]

The debate is ongoing. Members have made some forceful arguments in favour of a limit and, in the Home Office, we have considered reflecting on those very carefully indeed.

[Afzal Khan]

Is the Minister aware that Parliament has considered this idea for the limitation? Recently, there was a discussion on 90 days, and then 42 days, and this was for terror suspects. Both were rejected by the House. Does she not think that if 42 days for terrorists was rejected, we should not have it for immigrants?

[Caroline Nokes]

Perhaps the hon. Gentleman has made the point that there is not yet any agreement on reasonable time limits, given that, with both 90 days and 42 days—in this new clause we are discussing 28 days—there is a wide range of opinion on what a reasonable time limit might look like.

I wish to address—as I am sure the Chairman wants me to—the individual elements of the new clauses. First, and this has already been referenced, they would apply only to EEA and Swiss nationals. The effect of these new clauses would be to introduce a system that imposed time limits on the detention of individuals of certain nationalities but not on others. As I have said in relation to other amendments and clauses limited to EEA nationals, this would clearly be discriminatory on nationality grounds, going against Parliament’s proud history of promoting laws that protect human rights and protect individuals from discrimination. I cannot see any justification for Parliament to depart from those principles in the way proposed.

While new clause 1 would introduce a 28-day longstop time limit for exceptional cases, new clause 3 would provide for a 96-hour time limit. Both would have a major impact on our ability to remove and on the processes on which removal action is dependent. For example, in 2018, there were more than 8,500 removals directly from detention. More than 2,700 individuals were removed from the UK, having been detained for 29 days or more. We believe that introducing a 28-day longstop time limit would encourage people to change behaviours, so as to run down the clock to secure release. As it stands, a presumption of release after 96 hours, other than in the most restrictive of circumstances, would make it extremely difficult to remove any individuals from the UK.

[Stuart C. McDonald]

Surely it is unfair to characterise the 96 hours as a time limit. It is simply a deadline within which there should be a bail hearing. I do not see how anyone can argue, if they support strongly the presumption of liberty, that there should not be some sort of judicial oversight about whether or not someone is entered into detention in the first place.

[Caroline Nokes]

I will come to that point shortly. There was an example that I wanted to use to demonstrate to Members some of the challenges faced, including the many claims for asylum made by people who had opportunities to raise those issues earlier, with some even claiming asylum on the steps of a plane. I will illustrate our concerns with reference to a case study provided to the Joint Committee on Human Rights in December. In that case, a failed asylum seeker absconded for nine years before re-establishing contact with the Home Office and lodging a new claim. This was unsuccessful, as were all the subsequent appeals and further submissions. The individual was detained after having been encountered working illegally. He then disrupted attempts to effect removal by refusing to leave the centre until removal was eventually achieved. It took 54 days to remove the individual from the point of detention, which would not have been possible had the time limits enshrined in these new clauses been in place.

Moving on to the further details of the new clauses and the point raised by the hon. Member for Manchester, Gorton, the requirement for the judiciary to be involved in consideration of the case at or around the 96-hour point of detention would place significant additional burdens on the tribunal service. As it stands, bail cases are normally listed within three to six days. That means that a significant number of cases would fall outside the 96-hour period, and that is without taking into account the fact that there would be a dramatic increase in the number of cases being referred to the tribunal.

Such an increase would make the system unsustainable without significant reform, which could not be achieved within the three months before commencement proposed by new clause 4. However, the proposal would also require a different type of decision by judges, which would need careful consideration by the judiciary, given their independence.

We should not forget that detainees can apply for bail at any time of their choosing. Automatic referral for bail occurs at the four-month stage, and we are currently piloting automatic referral at two months. These bail hearings are supplemented by regular reviews and by case progression panels for those held in detention beyond three months. The new clauses would allow for an individual to be detained beyond the outcome of the initial bail hearing, though only for a maximum of 28 days in total, and only in very exceptional circumstances. These circumstances are not defined. I ask the hon. Member for Manchester, Gorton to consider whether he has in mind individuals seeking to frustrate the removals process. If so, what activity is regarded as frustrating the removal process, or does he have in mind individuals who are criminals? If so, how serious would the criminality have to be to justify continued detention? These matters are not clear, but they are fundamental to managing a detention system.

On the subject of criminality, let us assume that foreign criminals are intended to be included in the category of “very exceptional” circumstances, for the moment. The provision would allow the Government to detain such individuals for up to 28 days. At that point there would be no option other than release. No exceptions for dangerous criminals are built into the provision. If we could not deport individuals within 28 days, they would be released on to the streets, even if they presented a danger to the public.

The Government are under a statutory duty to deport foreign national criminals under the UK Borders Act 2007, and this duty would be seriously undermined if detention could not be used to effect removal. The same sort of issues would apply in respect of national security cases. The new clauses provide that an individual cannot be re-detained once the 28-day time limit has been reached unless there is a material change in their circumstances. What constitutes a material change is not defined. Again, these are serious matters on which the new clauses are not clear. For example, would it be possible to re-detain an individual who had been deported from the UK, but had re-entered in breach of the deportation order?

Would the failure of the person to comply with reporting requirements, or a breach of bail conditions, amount to “very exceptional’ circumstances? Finally, the three-month implementation timescale enshrined in new clause 4 is likely to be unworkable given the extensive changes to the immigration and judicial systems necessary to implement the envisaged changes.

The Government are of the view that the new clauses would significantly impair the UK’s ability to proportionately and efficiently remove from the UK individuals who have no right to be here and who, in some cases, represent a danger to the public.

[Stuart C. McDonald]

I suspect that the Minister anticipated lots of interest in these new clauses. I want to take her back to the issue of foreign national offenders, which she went through very quickly. She must agree that it is not acceptable to detain low-level foreign national offenders for months or years on end.

What exceptions does she think are necessary in order to make general inclusion of foreign national offenders in a time limit acceptable to the Government? We cannot detain everybody for ever simply because the Home Office fails to remove them by the end of their sentence.

[Caroline Nokes]

I thank the hon. Gentleman for that intervention. Of course it is not just unacceptable but not lawful, in the case of foreign national offenders, to detain people for very long periods with no realistic prospect of removal. The Home Office works incredibly hard, sometimes in difficult circumstances, to seek documentation from different Governments in order to be able to effect the removal of foreign national offenders.

I do not pretend that any of this is easy. However, an amendment to the Bill—tightly drawn as it is to end free movement—is perhaps the wrong place to seek to implement such a significant change. That does not mean that my mind is closed; far from it. From the views that have been expressed to me over the past 12 months and this morning, I appreciate that we certainly need to do more. That is why I welcome the proposals that Stephen Shaw put forward in his re-report last year. Indeed, the Home Secretary grasped those changes with enthusiasm. There will always be more to do on the issue of detention, and I am absolutely committed to doing it. As Stephen Shaw said in his recent report, the call for the 28-day time limit,

“has been articulated more as a slogan than as a fully developed policy proposal”,

and I am inclined to agree with him. I therefore respectfully ask the hon. Member for Manchester, Gorton to withdraw his amendment.

[Afzal Khan]

I thank the Minister for putting forward the Government’s position. We have had a good debate on the new clauses, but at this stage I am not minded to push for a vote. We will review the matter on Report. I beg to ask leave to withdraw the motion.

Clause, by leave, withdrawn.

New Clause 9

“Super-affirmative procedures for immigration rules

‘(1) The Immigration Act 1971 is amended in accordance with subsection (2).

(2) After section 3(2) insert—

“(2A) Any statement of the rules, or of any changes to the rules, which affect the rights and obligations of persons who will lose their right of freedom of movement under the provisions of the Immigration and Social Security Co-Ordination (EU Withdrawal) Act may not be made or have effect unless the Secretary of State has complied with subsections (2B) to (2F) below.

(2B) If the Secretary of State proposes to make changes to the rules under section (2A) above, the Secretary of State must lay before parliament a document that—

(a) explains the proposal; and

(b) sets it out in the form of a draft order.

(2C) During the period of 60 days beginning with the day on which the document was laid under subsection (2B) (the “60-day period”), the Secretary of State may not lay before Parliament a draft order to give effect to the proposal (with or without modification).

(2D) In preparing a draft order under section (2A) above, the Secretary of State must have regard to any of the following that are made with regard to the draft order during the 60-day period—

(a) any representations; and

(b) any recommendations of a committee of either House of Parliament charged with reporting on the draft order.

(2E) When laying before Parliament a draft order to give effect to the proposal (with or without modifications), the Secretary of State must also lay a document that explains any changes made to the proposal contained in the document under subsection (2B).

(2F) In calculating the 60-day period, no account is to be taken of any time during which Parliament is dissolved or prorogued or during which either House is not adjourned for more than 4 days.” —(Afzal Khan.)

This new clause would amend the Immigration Act 1971 to ensure that any changes to the UK’s Immigration Rules which affect EEA or Swiss nationals must be made under the super affirmative procedure.

Brought up, and read the First time.

--- Later in debate ---

[Stuart C. McDonald]

I will speak to new clauses 40 and 54. I know that Members across the Committee will be enthralled by the prospect of an immigration rules advisory committee. Indeed, if new clause 54 is agreed to, I am sure that straight away, the Minister will be open to considering CVs from people who might serve on that committee.

As the shadow Minister said, the new clauses are all about increasing the level of scrutiny. New clause 40 would require an assessment of the impact of any changes to the immigration rules on modern slavery and on children to be laid before Parliament before the changes could be made. Just as significantly, it would give rise to the possibility of MPs actually being able to debate and amend proposed changes to the immigration rules. New clause 54 would put in place an immigration rules advisory committee.

The kernel of these ideas came from a recent report by British Future, which simply points out, as the shadow Minister has done, that changes to immigration rules have been rapid and incredibly complicated. The Home Office has made more than 5,700 changes since 2010, with the rules doubling in length over the same period. Little by way of explanation is provided to MPs when changes are proposed, and even less of scrutiny or debate. In such situations it is near impossible for most MPs to keep track of changes and to fulfil their role of scrutinising the Government’s work.

Social security offers a comparison with our proposal for an immigration rules advisory committee. Like social security laws, immigration rules are constantly changed by secondary legislation. However, there has been a social security advisory committee since as long ago as 1980. It has an independent remit to scrutinise draft secondary legislation on social security, making advice available to both the Government and Parliament. It has 14 members, who come from a wide range of professional backgrounds, and Ministers are usually required to submit regulations in draft to that committee, which may decide to scrutinise them formally. New clause 54 essentially copies the language of the enabling legislation for that committee and applies it to immigration rules.

While I welcome what the Minister and the previous Home Secretary have said about the need to simplify the immigration rules, we need to improve our procedures for scrutinising changes. Our new clauses offer two reasonable and practical proposals for exactly how that could be done.

[Caroline Nokes]

I am grateful to the hon. Members for Manchester, Gorton and for Cumbernauld, Kilsyth and Kirkintilloch East for providing a further opportunity to discuss parliamentary scrutiny of immigration rules, which is raised in all three of these proposals. Parliamentary scrutiny is an important issue, and I am aware that Committee members are very interested in it. I will take each new clause in turn, but first I will briefly cover a few background points.

As Committee members will be aware, the detailed provisions on who is entitled to enter and remain in the UK, and on how to apply for such leave, are set out in the immigration rules. The rules are made under the power in section 3 of the Immigration Act 1971. This power to change immigration rules, and the procedure for scrutiny of any changes, are long established. I remind hon. Members that the immigration rules were used, back in 2008, to introduce the points-based system that we currently operate.

I reiterate that none of the changes that we are making through the Bill are intended to affect that power or procedure. We will use that well-established power to set up the future immigration system once we have ended free movement and left the EU. I am in favour of parliamentary scrutiny of changes to the immigration rules, but I am not persuaded that there is any reason to depart from the existing scrutiny mechanism, which has been used to scrutinise all Governments, whether they are making minor or significant changes, for more than 45 years.

In addition, the new clauses are framed as applying only to those who lose their right to freedom of movement under the Bill. However, the Government have been clear that, once free movement ends, EEA nationals will be subject to UK immigration law, including the immigration rules. That means that all subsequent changes to the rules will potentially affect EEA nationals, so the new clauses would alter the parliamentary procedure for changing the immigration rules while purporting to be more limited.

[Stuart C. McDonald]

The Minister skirted around the fact that she thinks the current levels of scrutiny are absolutely fine, but without really drilling down into why. I wonder how many people in this room have ever looked at draft immigration rules that have been laid before Parliament. If they have done, how many actually understood what the draft changes were supposed to do? On the very few occasions I have managed to look at them, that has been hellishly difficult. Will the Minister explain why that level of scrutiny is appropriate?

[Caroline Nokes]

The hon. Gentleman may not have noticed that I said right at the beginning that I would give some background before delving into further detail. He need not worry; there is plenty to come.

I am committed to delivering a future immigration system that is fit for purpose and I acknowledge that in order to do that, we must put people first and make it easier for them to navigate our complex system. That is why the Law Commission has begun a consultation on simplifying the immigration rules; I look forward to receiving its recommendations later this year and seeing what more we can do in this area.

--- Later in debate ---

[Stuart C. McDonald]

The Minister makes a fair point that it would not be realistic to apply that procedure to every single immigration rule change. One alternative would be to use the nice new committee that we are going to set up using new clause 54 to decide what form of parliamentary procedure would be necessary. For example, if a change to immigration rules was urgent, the committee could say that the Government could go ahead and make it, but if a change was more significant and not time-pressing, there could be a proper and full debate on the Floor of the House.

[Caroline Nokes]

I am just coming on to the hon. Gentleman’s proposals for a sparkly new committee. New clause 54 would require the Secretary of State to establish an immigration rules advisory committee. I appreciate the concerns behind the new clause. Establishing a new set of immigration rules that will apply to all EEA and Swiss nationals is a big deal, and we need to get it right.

We have made a clear commitment that a wide range of stakeholders, including Parliament, will have an opportunity to contribute their views on the future system before the final policy decisions are made. That will help to ensure that the relevant immigration rules work for the whole United Kingdom. Clearly, Parliament will have the opportunity to scrutinise the rules throughout that process, using the well-established procedures that I have described. I note that we have never before had such an advisory committee for immigration rules. If the new clause were to be added to the Bill, we would not have a similar committee to scrutinise immigration rules that apply to persons who are not covered by the Bill.

As we have said, from 2021, the immigration rules will apply to EU and non-EU migrants alike in a single system that selects people on the basis of skill and talent, as opposed to nationality, so I regard such a committee as unnecessary. I hope that the hon. Member for Cumbernauld, Kilsyth and Kirkintilloch East and the hon. Member for Paisley and Renfrewshire North see that their new clauses are unnecessary, and I invite the hon. Member for Manchester, Gorton to withdraw new clause 9.

[Afzal Khan]

We will not press new clause 9 to a vote, so I beg to ask leave to withdraw the clause.

Clause, by leave, withdrawn.

New Clause 10

Settled status: right to appeal

“(1) When a person whose right of free movement is removed by the provisions of this Act makes an application for settled or pre-settled status, that person may make an appeal to the First-tier Tribunal (Immigration and Asylum Chamber) if—

(a) the application is turned down, or

(b) the person is granted pre-settled status but there is evidence to show that the person should have been granted settled status.

(2) Subsection (1) applies if the United Kingdom leaves the European Union—

(a) following a negotiated withdrawal agreement, or

(b) without a negotiated withdrawal agreement.”—(Afzal Khan.)

Brought up, and read the First time.

--- Later in debate ---

Finally, if appeal rights potentially insert more complexities into the system, it could be argued that the Home Office simply does not have the capacity to deliver a more complex system. It cannot be fair in the current circumstances, however, to expect the Home Office to get sufficient decisions correct—and for their quality to improve in the required time—such that we ought to remove people’s rights without proper due process. People need to be empowered to enforce their rights in a meaningful way.

[Caroline Nokes]

Hon. Members have tabled three new clauses concerned with providing a right of appeal against refusals under the EU settlement scheme. I absolutely understand the sentiment behind the new clauses and would like to confirm that if there is a deal with the European Union, the Government will use the withdrawal agreement Bill to provide a right of appeal in respect of refusal of leave under the settlement scheme.

Unlike new clauses 10 and 14, under the withdrawal agreement Bill we plan to provide for an appeal right against refusal of settlement scheme leave even where the applicant continues to have a right of free movement in an implementation period. New clauses 10 and 14 are therefore less generous than the Government’s planned provision for appeal rights in a deal scenario.

New clause 34 is also more limited than the appeal rights that we propose in a deal scenario. Under the new clause, non-EEA family members eligible to apply under the settlement scheme would, if refused, not get a right of appeal. The Government’s intention is that, in the event of a deal with the EU, anyone refused leave under the settlement scheme will get a right of appeal.

I make those points not to pick holes in the new clauses but to demonstrate that appeal rights are complex and would require several consequential changes to legislation to ensure that they work effectively. However, I understand that hon. Members are concerned about what the Government intend on the issue, rather than about the wording of specific amendments, and I hope that I can provide some reassurance.

In setting up the EU settlement scheme, the Government have made a commitment to EU citizens, EEA and Swiss nationals, and their family members because we recognise that they make a huge contribution to our economy and our society. It is important to us that the settlement scheme works and that it works well. At the same time, in the event that we leave the EU without a deal and as we move towards a single immigration system, I believe that it is fair to provide consistency between the remedies available to those refused leave under the EU settlement scheme and the remedies generally available to non-EEA nationals.

[Paul Blomfield]

I am grateful to the Minister for taking an intervention on this point, because we have come to the nub of the debate. The Prime Minister and the Government have said consistently that EU and EEA nationals are our friends, our neighbours, valued members of our community and an important part of our workforce, and that they will not have diminished rights when we leave the European Union. What message does the Minister think is being sent to them by the proposal that in the event of no deal their right of appeal would be withdrawn?

[Caroline Nokes]

I was going to come on to talk about administrative review, which is available in the event of deal or no deal to those who are refused leave under the scheme on eligibility grounds. Under the settlement scheme, eligibility is focused primarily on how long an individual has been in the UK; it is not about demonstrating that individuals have been exercising free movement rights but simply about proving identity and that they are here. Administrative review will be able to correct any errors that might be made in calculating the time period, if necessary by considering new evidence. The hon. Gentleman will also be aware that application under the EU settlement scheme is free—I welcome the change that the Prime Minister made by removing the fee. It would be open to any individual simply to reapply, rather than go through an appeal or administrative review process, because there is no charge.

When an applicant is refused on suitability grounds, they will not have a right to administrative review. Refusals on suitability grounds will be made, in particular, if there is evidence of serious criminality. However, where people are refused on criminality grounds and subject to deportation, they can make a human rights or protection claim against their removal; they will have a right of appeal under existing legislation if that claim is refused. In addition, applicants who are refused leave under the settlement scheme have the right to apply for judicial review of the refusal, as we have heard. Such remedies exist now for those refused under the EU settlement scheme.

We are committed to protecting EU citizens, and I hope that what I have said provides reassurance to hon. Members that adequate remedies are already available to those refused leave under the settlement scheme.

[Afzal Khan]

Does the Minister not accept that judicial review or an internal review is no match for the right of appeal? Judicial review is narrow in how it is done, and internal review is marking one’s own homework.

[Caroline Nokes]

The hon. Gentleman has referred again to judicial review. I absolutely accept that it can be time consuming, and I recognise Members’ concerns about appeal rights in the event of no deal, but I sincerely hope that we will not be in that position and that we will be able to introduce appeal rights under the withdrawal Bill. However, it would be confusing to have different provisions on appeal rights in different legislation, which is why I think that the amendments are premature. Nevertheless, hon. Members in Committee and those outside this place, including at the evidence sessions, have made a number of points about further reassurance being required, so I will certainly reflect on that to see what more we can do.

[Afzal Khan]

The question was not just about judicial review being time consuming, which it is, but about the cost and how narrow it is in law.

[Caroline Nokes]

The point that I have to reflect back every single time is that the Government are working incredibly hard to ensure that we secure a deal with the EU. That is obviously the best way to avoid that scenario.

[The Chair]

Does the hon. Member for Sheffield Central wish to say anything before I ask the proposer of the new clause whether he wishes to withdraw it?

--- Later in debate ---

[Stuart C. McDonald]

I will speak briefly in support of the broad thrust of the new clause—I might have suggested a slightly different approach—which effectively draws attention to the hostile environment, or compliant environment, as it is sometimes known now. Essentially, in the light of the court case that the shadow Minister referred to, it is now absolutely time that we have to roll back on the hostile environment altogether.

I stumbled across some of my notes from during the passage of the Immigration Act 2016, when the Government essentially ignored all sorts of warnings about the right to rent and various other hostile environment measures and decided to press ahead. Thanks to the independent chief inspector of borders and immigration, we have since found that the Government made next to no effort to monitor the impact of the measures they had introduced. That sequence of events is also exactly what happened with Windrush; warnings were ignored and the Government pressed ahead without looking at the consequences for the people they were warned might be adversely impacted. That is exactly the same as with the right to rent and other hostile environment measures.

I place on the record my congratulations and thanks to the Joint Council for the Welfare of Immigrants, the Residential Landlords Association and various others involved in that case, which they have been fighting for a long time. Their briefings in 2016 were absolutely clear: their testing found that people from black and minority ethnic backgrounds were being discriminated against when they approached landlords, as was anyone who was not able to produce a British passport.

In the light of that scathing judgment from last week, surely the Government cannot just press ahead with the extension of hostile environment measures to EU nationals. Surely they must now say that they accept that judgment and intend to roll back from the right to rent and other hostile environment policies.

[Caroline Nokes]

I am grateful to the hon. Member for Manchester, Gorton for tabling the new clause, and I welcome the opportunity to explain how statutory eligibility controls operate for EEA nationals. The Government have made clear our commitment to protect the right of EEA nationals living in the UK before the new skills-based immigration system is introduced. While I recognise the intention behind the new clause, it is unnecessary. In some important respects, it is also technically deficient.

EEA nationals are already subject to the universal eligibility checks carried out by employers, landlords and the NHS. Those checks apply to everyone, regardless of nationality. EEA nationals currently evidence their eligibility to employers and landlords simply by producing their national passport or identity card. When accessing benefits and health services, they also need to demonstrate that they are habitually or ordinarily resident in the UK. We made it clear in our White Paper that EEA nationals will not be subject to additional requirements to demonstrate their status in the UK until the future skills-based immigration system is introduced. We recognise the importance of having an implementation or transition period to allow EEA nationals living here to secure their status in UK law by applying to the EU settlement scheme.

Importantly, the White Paper on the UK’s future skills-based immigration system also makes it clear that we will not require employers to undertake retrospective checks on existing employees when the new system is introduced in 2021. That is entirely consistent with the approach adopted by previous Governments when introducing changes to the checking arrangements. The new clause does not provide further meaningful safeguards to the commitments we have already given.

It is also important to highlight the fact that further secondary legislation would be required before EEA nationals could be compelled to produce evidence of UK immigration status in the same way that non-EEA migrants are currently required to do, to demonstrate their right to work or rent in the UK. Such legislation would be subject to parliamentary scrutiny in the usual way. I also reassure hon. Members that, in line with the draft withdrawal agreement, we will take a proportionate approach to those who for good reason miss the deadline to apply to the EU settlement scheme.

The new clause would also prevent NHS charges from applying to EEA nationals before 30 June 2021, or until 3 million people are granted settled status under the scheme. However, it makes reference to the National Health Service Act 2006, which applies only to NHS charges in England and Wales. The NHS in Scotland and Northern Ireland would be unaffected.

Charges have applied for NHS secondary care to people not ordinarily resident in the UK since 1982, except where an exemption from charge category applies. Entitlement to NHS-funded secondary care is based on ordinary residence in the UK, not nationality or payment of taxes. That means living in the UK on a lawful, properly settled basis, for the time being. EEA and Swiss nationals and their family members who are or become ordinarily resident in the UK are therefore fully entitled to free NHS care in the same way as a British citizen who is ordinarily resident.

In the event that the UK leaves the EU without a deal, the Government have made a unilateral offer on citizens’ rights. It is not dependent on EEA member states making similar assurances for UK citizens resident in those countries. Should EEA member states make less generous provision for UK nationals living or moving there, the new clause would result in a less favourable offer to EEA nationals in the UK.

The immigration exemption in paragraph 4 of schedule 2 to the Data Protection Act 2018 is entirely separate from measures designed to deal with eligibility checks on immigrants. It is a necessary and proportionate measure that we believe is compliant with the General Data Protection Regulation. It can be applied only on a case-by-case basis, in limited circumstances, where complying with a certain data protection right would be likely to prejudice the maintenance of effective immigration control. It is misleading and unhelpful to frame the matter in such a way that it appears to be aimed at EU citizens. The exemption is a necessary measure, designed to protect our immigration system from those who seek to undermine and take advantage of it. New clause 11 does not provide any additional safeguards or assurances beyond those already planned or in place.

Finally, I want to respond to points made by hon. Members about the recent High Court judgment on the right to rent scheme. The scheme was introduced to defend an important principle. Those who have no right to be here should not be renting a property, and landlords should not be making profit renting to people without legal status here, which often happens in poor conditions. The Government consulted carefully on measures to require landlords to undertake right to rent checks. We developed the scheme in close collaboration with a consultative panel, which drew together experts from the sector. The scheme was trialled in the west midlands and rolled out to the rest of England only after a thorough evaluation, which was published in full in October 2015.

[Stuart C. McDonald]

My recollection is that originally there was supposed to be a detailed assessment of that pilot before it was rolled out, but that after the election of 2015 the Prime Minister said it would carry on regardless. Where is the evidence that it has had any positive impact, or that it has not had a discriminatory effect, as the High Court judge found last week?

[Caroline Nokes]

I am minded, given the High Court judgment of last week, to be careful what I say about the issue, and I hope that the hon. Gentleman will forgive me if I just go on to speak a little about the evaluation of October 2015, which included 550 responses to online surveys, 12 focus groups, 36 one-on-one interviews and a mystery shopping exercise involving 332 encounters. That evaluation found that there was no systemic discrimination on the basis of race. The law was, and remains, absolutely clear that discriminatory treatment on the part of anyone carrying out the checks is unlawful.

Despite that, as hon. Members have mentioned, on Friday last week the checks were declared incompatible with the European convention on human rights. We disagree with the finding and are appealing the judgment. We remain committed to the principle that if someone has no right to be in this country they should not be renting property. This country has a proud tradition of upholding and promoting human rights, and we have set the standard internationally for the strength of our legal protections against discrimination. The High Court decision is not something we should take lightly.

[Afzal Khan]

We hear what the Minister is saying about people who have no right to be here, but the fact is that people who have a right to be here can become a victim of the hostile environment. That is what happened with Windrush.

[Caroline Nokes]

As I was saying, the High Court decision is not something we take lightly, but we have been granted permission to appeal all aspects of the judgment. In the meantime, the provisions passed by this House in 2014 remain in force. Landlords and letting agents are still expected to conduct right-to-rent checks, as required in legislation, and they are still expected not to discriminate against anyone on the basis of their colour or where they come from.

As my right hon. Friend the Home Secretary has previously made clear, we are looking at options for evaluating the operation of the scheme, adding significantly to the evaluation that has previously been done. The Home Secretary has written to Wendy Williams to draw her attention to the High Court’s findings. The lessons learned review is identifying the key legislative, policy and operational failures that resulted in members of the Windrush generation becoming entangled in measures designed for illegal immigrants.

I will continue to chair meetings of the right-to-rent consultative panel with Lord Best, to discuss this and other matters relating to the operation of the scheme. I reiterate my steadfast commitment to tackling discrimination in all its forms, and I am committed to building an immigration system that provides control, but is also fair, humane and fully compliant with the law. I hope that in the light of these points the hon. Gentleman will withdraw his new clause.

[Afzal Khan]

I thank the Minister for what has been said this morning. However, we take the position that the hostile environment must be dismantled and we do not wish to see EU citizens going through what the Windrush generation has gone through.

Question put, That the clause be read a Second time.