UK Fishing Industry: Non-EEA Visas
Caroline Nokes Excerpts(5 years, 7 months ago)
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The Minister for Immigration (Caroline Nokes)
I congratulate the right hon. Member for Orkney and Shetland (Mr Carmichael) on securing the debate, and I am grateful to the other hon. Members who have intervened.
As the right hon. Gentleman pointed out, this is not the first time he has had an Adjournment debate on this topic. The last occasion was indeed on 11 July last year, although I would like to correct my hon. Friend the Member for Moray (Douglas Ross), who made the point that England were losing their World cup semi-final. If I remember correctly, they were not losing while we were having the debate; it was not until we had adjourned to the Smoking Room that I managed to see England lose. As an English Member responding to contributions from a number of Scottish colleagues that night, I was very conscious that they may have slightly different ambitions for the evening when it came to the football.
At the invitation of the right hon. Gentleman, I would like to bring the House up to date with what has happened in the nine months since we were last gathered for a debate on this important subject. The first thing to mention is that I spent some of last summer on the road. It is always—perhaps particularly at the moment—good to get away from this place. I visited agricultural and fishing communities in both Scotland and Northern Ireland, and I was able to listen at first hand to the concerns of those working in those industries. I found it incredibly valuable to hear what they had to say.
The second point—the right hon. Gentleman referenced this significantly in his speech—is that the Migration Advisory Committee issued its report on the impact of EEA migrants last September, with recommendations on the future system. The MAC took evidence from a wide range of organisations and individuals and visited every region of the United Kingdom, and that included talking to representatives of the fishing sector. I recognise that not everybody agrees with the MAC’s conclusions—probably an impossibility, given the subject matter—but I do not think that anyone can dispute the thoroughness and rigour of its approach.
Mr Carmichael
I very much dispute the rigour and thoroughness. The MAC has taken a broad range of views, in a broad range of sectors. It has given no specific consideration at all to the needs of the fishing industry. Will the Minister, either by going back to the MAC or else by some other route, ensure that we get the proper consideration of the industry’s needs that—as surely must be apparent from the parts of the report that I have read out—they have not yet been given?
Caroline Nokes
The right hon. Gentleman will be conscious that the MAC’s commission was quite wide ranging—as I pointed out, it spoke to the representatives of the fishing industry—but he will also be aware that at present it is conducting a review of the shortage occupation list at all levels. Whereas previous reviews have looked at higher skill levels—I will address the definition of skills in a moment—this time round the MAC has been asked to look at all skill levels and so will consider industries such as fishing, which we have been talking about this evening.
The hon. Member for Central Ayrshire (Dr Whitford) talked about skill levels, and I think it is worth expanding briefly on that point. As the Minister, I am conscious that when we discuss visas and immigration matters we often use the terminology of skilled and highly skilled. That is in no way to denigrate the range of different skills that are necessary across a wide range of industries. I have had a number of meetings, particularly over the last couple of weeks, in which we have talked about the care sector. Nobody would suggest that those working in care were not highly skilled, with a range of perhaps softer skills, which are absolutely necessary when caring for those with disabilities.
However, the MAC was clear when it gave its advice to us in the autumn that there was no case for schemes for particular sectors in the immigration system, other than agriculture, which has some unique characteristics. Instinctively, that has to be the right approach. Governments should avoid picking particular sectors of the economy for special treatment. That would inevitably be a highly subjective process and a major distortion of the operation of the market. It is also noticeable that the text of the recent report by the expert advisory group on migration and population established by the Scottish Government does not mention fishing once. The MAC has concluded that immigration is not the answer to depopulation in local areas—a point that the right hon. Member for Orkney and Shetland referred to—and that there other measures that the Scottish Government could look to.
Mr Carmichael
Is the Minister telling the House, then, in all seriousness and sincerity, that she agrees with the suggestion that, instead of a sector-based scheme, we should be looking at expanding the youth mobility programme?
Caroline Nokes
If the right hon. Gentleman exercises some patience, I am coming to a number of points that I would like to make.
It is crucial that the House reflects on the fact that the White Paper published in December was the start of a year-long engagement across different regions of the United Kingdom and different sectors of industry. To date, there have already been in excess of 45 engagement events or roundtables, and we have taken evidence from 650 different organisations or individuals in the first three months of this year alone. That process will continue over the course of this year, because I am conscious that we are introducing a future immigration system that will have to reflect the realities of a post-Brexit Britain and that will have to be sufficiently flexible and adaptable to address the needs of an economy that undoubtedly will change in future. It is important that we listen to the concerns raised by industry and hon. Members and get it right.
Jim Shannon
I remind the Minister of the evidence from the Anglo-North Irish Fish Producers Organisation that we left with her when I and other hon. Members went to speak to her. The organisation advertised across the whole of Europe, and of the 140 people who replied only five actually came forward. That is an indication that across Europe we cannot get the people to do the jobs and so, if I can use a fishing term, we have to cast our net wider to get the right people for the job. Those are the facts of the case.
Caroline Nokes
As the hon. Gentleman will have heard me say, we have also asked the MAC to look at a revision of the shortage occupation list. He will know that we have suggested the introduction of a separate shortage occupation list for Northern Ireland, as well as consulting on one for Wales, in addition to the separate list that we already hold for Scotland.
We need to be mindful that tying workers to particular employers or sectors can increase the risk of exploitation. I am sure hon. Members will be aware that recently four United Nations rapporteurs wrote to the Irish Government to point out that their scheme, which has been put in place in Ireland to bring in non-EU workers to work in the fishing industry there, is giving rise to forced labour and exploitation on Irish fishing vessels. There is evidence that laws on minimum wage, maximum hours and safety —the right hon. Member for Orkney and Shetland is laughing as I say this—have been widely flouted.
David Duguid
On the subject of exploitation, I hope my right hon. Friend is looking forward, as I am, to her visiting my constituency in the near future to see the conditions in which a lot of non-EEA workers live and work. I would also like to bring her back to the numbers required in this case. In the horticultural sector, the Home Office has already made an allowance in the form of a pilot scheme for 2,500 people. Without getting into a debate about whether that is enough for that sector, that is twice as many as the number that we are talking about for this sector. The latest estimate I have from the Scottish White Fish Producers Association is that we currently have 800 non-EEA crew members, with 400 from the EU. After Brexit, that will be a total of 1,200, which is less than half the number that will be provided for the horticultural sector. Can such a number of visas be made available to see us through on a non-permanent basis while, at the same time, we develop skills locally?
Caroline Nokes
I have listened to my hon. Friend on this subject on many an occasion. He is a forceful and passionate advocate for the industry. On the seasonal workers scheme in the edible horticultural sector, it is important that we have the opportunity to evaluate the scheme and reflect on it, but I am certainly listening closely to the calls this evening for a similar scheme for fishing.
I am conscious that I only have a few minutes left, but I would like to focus attention on the White Paper, which, as I said, we published back in December. I have already indicated that we will have a year of engagement —we are already three months in. It is important to reflect on the fact that the MAC has already suggested that we reduce the skill level from RQF 6 to RQF 3 for those seeking to come to the UK, post the introduction of the new immigration system. As I said earlier, I am not for one moment suggesting that no skill is required to work in the fishing industry. Indeed, having spoken to people in the sector in both Scotland and Northern Ireland, I am full of admiration for those who work in what are extremely difficult, challenging and sometimes downright dangerous conditions. Having given that important clarification, I would like to repeat that the MAC advised that there should be no specific route for those undertaking jobs below RQF 3. We recognise, however, that after 45 years of free movement, many businesses and employers have come to rely on a steady stream of lower skilled migrant labour. We do not wish to create a cliff edge. Accordingly, the White Paper sets out our intention that as a transitional measure we will create a temporary visa that will allow migrants from low immigration risk countries to come to the UK for up to a year to work in jobs at any skill level.
The White Paper does not represent the Government’s last word on this topic; quite the reverse. It is the start of the conversation, not the end, and we are talking to every sector of the economy across every nation of the United Kingdom and every region of England. As I said earlier, Ministers and officials have held 45 meetings with more than 650 stakeholders, and that work will continue in the coming months. I confirm that it will include representatives of the fishing sector. I also hope that it will give me the opportunity to get out and about and visit the constituency of my hon. Friend the Member for Banff and Buchan (David Duguid).
I have the Minister for Agriculture, Fisheries and Food, my right hon. Friend the Member for Scarborough and Whitby (Mr Goodwill), with me this evening, and Members will be aware that the Fisheries Bill is making is progress through the legislative process. With that, I conclude my remarks.
Mr Carmichael
On a point of order, Mr Speaker. I sense that the Minister has finished her comments. I want to place on record that she said that I was laughing in relation to safety at sea.
Windrush Compensation Scheme
Caroline Nokes Excerpts(5 years, 7 months ago)
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The Minister for Immigration (Caroline Nokes)
Yesterday the Home Secretary announced the launch of the Windrush Compensation Scheme. The Government deeply regret what has happened to some members of the Windrush generation and the launch of the compensation scheme marks a key milestone in righting the wrongs they have experienced.
Detailed information about the compensation scheme, including the rules that govern the scheme, with the forms and guidance that people need to make a claim, are available online at: https://www.gov.uk/guidance/windrush-compensation-scheme. Our helpline is also open now on: 0800 678 1925 for those wishing to receive printed copies of the claim form or for any other queries, this is free if calling from within the UK. Those calling from outside the UK will be called back.
I would like to clarify, further to questions raised with the Home Secretary on the Floor of the House, three issues in relation to eligibility to apply for compensation. The first is in relation to those who are not resident in the UK. A Commonwealth citizen outside the UK, who was settled in the UK before 1 January 1973, who has settled status, right of abode or is now a British citizen, or whose settled status has lapsed due to being absent from the UK for a period of two or more years is eligible to apply for compensation.
Secondly, the definition of a close family member for the purpose of the compensation scheme is a spouse or civil partner living with the claimant, cohabitee for continuous period of two years or more, a parent, a child or a sibling. Close family members are entitled to claim regardless of whether a primary claimant chooses to make an application and whether said claimant is deceased.
Thirdly, the definition of serious criminality for the purposes of the compensation scheme is defined as a conviction that received a sentence of imprisonment of four years or more, and that the offending was of such a nature that makes it inappropriate to make an award in whole or part. This provision does not apply to a conviction and sentence outside of the UK for conduct which on the date of the conviction was not an offence in the UK.
The Home Office is committed to raising awareness of the scheme, and to encouraging eligible people of all nationalities to submit a claim. Eligibility for compensation goes beyond members of the Caribbean Commonwealth, and we are putting in place a programme of events with key stakeholders, faith and community organisations to promote both the scheme and the wider work of the Commonwealth citizens taskforce. The first of such events is scheduled for Lambeth town hall on Friday 5 April and full details are available via the gov.uk page.
Regrettably, in promoting the scheme via email to interested parties, an administrative error was made which has meant data protection requirements have not been met, for which the Home Office apologises unreservedly.
This occurred in emails sent to some of the individuals and organisations who had registered an interest in being kept informed about the launch of the compensation scheme, which included other recipients’ email addresses. Five batches of emails, each with 100 recipients, were affected. No other personal data was included.
A recall was commenced as soon as the problem had been identified. The departmental data protection officer has been informed and an internal review will be conducted to ensure this cannot happen again. The Department has voluntarily notified the Information Commissioner’s Office of the incident.
I am firmly committed to doing right by the Windrush generation. The compensation scheme is an important step towards that and I will ensure that action is taken to ensure the highest standards are met not only in the processing of cases, but also in continued efforts to publicise the scheme and ensure those entitled to redress receive it.
[HCWS1496]
Oral Answers to Questions
Caroline Nokes Excerpts(5 years, 7 months ago)
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Damien Moore (Southport) (Con)
The Minister for Immigration (Caroline Nokes)
The Government’s approach has been informed by extensive, regular engagement with external stakeholders representing the needs of a broad range of people, to ensure that the EU settlement scheme is accessible to all. The Home Office has introduced a range of support, including £9 million of grant funding for voluntary and community organisations, and support via the EU Settlement Scheme Resolution Centre.
Damien Moore
I welcome the Government’s honest and transparent approach, which I know gives EU citizens living in my constituency the reassurance that they need. What steps is the Minister taking to give EU citizens as much reassurance as possible throughout the whole process?
Caroline Nokes
The EU settlement scheme opened fully on Saturday, and we have worked with EU citizens to make it as simple and straightforward as possible. Last week, we launched a £3.75 million programme of communications that provides both information and the underlying message that EU citizens are our friends, our colleagues and our neighbours, and we want them to stay.
Jess Phillips (Birmingham, Yardley) (Lab)
I have met the Minister to discuss this, but will she tell the House what assurances she can give those who are not citizens of the European economic area but are married to EEA citizens? Under the current system, they have to obtain the permission of those EEA citizens to secure their settled status, regardless of whether or not they are victims of domestic violence.
Caroline Nokes
I thank the hon. Lady for that question. It is not correct that people have to get the permission of somebody who may well be a perpetrator of domestic violence, but it is important that, through our £9 million of grant funding, we work with groups and support the most vulnerable in the community so that they can help evidence their time in the UK and be granted status through the channels that we have put in place.
Theresa Villiers (Chipping Barnet) (Con)
In the light of contact I have had with a constituent who is undergoing cancer treatment, may I urge the Minister to state in the clearest terms that EU nationals living in this country will continue to be entitled to NHS treatment?
Caroline Nokes
That is absolutely correct. There will be no loss of entitlement to NHS services and treatment, and I thank my right hon. Friend for her assistance in conveying the message to her constituents that we want our EU friends and neighbours to be able to stay and access the services and benefits to which they are entitled. That is important.
Joanna Cherry (Edinburgh South West) (SNP)
As the Minister says, the EU settled status scheme opened at the weekend, but the Government have not introduced a right of appeal to a tribunal against a decision under it. So in the event of a dispute about whether a person qualifies, the only means of independent redress is judicial review, which can be expensive and time-consuming. Does the Minister agree that that is not satisfactory? Will she commit to introducing a proper right of appeal?
Caroline Nokes
Of course, the hon. and learned Lady will know that an entire package of citizens’ rights for EU citizens is planned as part of the withdrawal agreement. That will provide the route, and her party might consider voting for it.
Joanna Cherry
As always, the Minister does not answer the question. It seems to me that there is no intention of introducing an independent right of appeal. Perhaps she can answer this question: the Costa amendment required the Government to ring-fence what had already been agreed for EU citizens’ rights; what progress has been made on securing that ring-fencing? Will the Prime Minister raise the matter at the EU Council on 10 April?
Caroline Nokes
I thought my response was quite clear. I reiterate to the hon. and learned Lady that the best way to ring-fence citizens’ rights is to vote for the deal.
Afzal Khan (Manchester, Gorton) (Lab)
As of 30 March, the EU settlement scheme is fully open. Efforts to promote the EU settled status scheme are too little, too late. No matter how well the Government advertise, there will be people who fail to apply before the deadline. Even if that is just a small percentage, hundreds of thousands of people will be stripped of their rights and subjected to the hostile environment. Will the Government accept proposals for a declaratory scheme—the only way to avoid a repeat of Windrush for EU citizens?
Caroline Nokes
I thank the hon. Gentleman for his question. He will of course know that the first three phases of the scheme were in testing mode, and it opened publicly for the first time on Saturday. That was designed to coincide with a widespread communications campaign, on which the Government are spending £3.75 million. He well knows that we debated the issues about a declaratory scheme in the Committee stage of the Immigration and Social Security Co-ordination (EU Withdrawal) Bill. We are very conscious of the fact that we want people to have status that they can evidence. That is why we put the scheme in place. They will have digital status, which will provide them with the ability to share just the information that is required for landlords and employers. I encourage all hon. Members to ensure that EU citizens living in their constituencies take part in the scheme.
Karin Smyth (Bristol South) (Lab)
Sir Vince Cable (Twickenham) (LD)
The Minister for Immigration (Caroline Nokes)
The White Paper, published in December, proposes a route for skilled workers of any nationality coming to do jobs at RQF—regulated qualifications framework—level 3 and above. It will be uncapped, allowing all those meeting the requirements to come here. The right hon. Gentleman will of course recall that the Home Secretary lifted the tier 2 cap for NHS workers last July.
Sir Vince Cable
Freedom of movement has allowed 20,000 nurses to be recruited to the NHS. Some 5,000 have left since the referendum and there are 41,000 vacancies, with many more in other occupations, such as careworker. While the Government are consulting on the salary cap level, can the Minister guarantee that there will be sufficient flexibility to allow these relatively low-paid but scarce occupations to be fully recruited and filled?
Caroline Nokes
The right hon. Gentleman will have heard earlier that, as at December 2018, we had over 5,200 more EU nationals working in the NHS in England than we did at the time of the referendum in 2016. He makes an important point about careworkers. During the engagement going on as part of the White Paper, this issue has been raised with me and the Government are certainly listening carefully. I am working closely with the Minister for social care and later this week we will be attending a roundtable on exactly this subject.
Mr Philip Hollobone (Kettering) (Con)
Kettering General Hospital recruits doctors and nurses from the European Union and from non-EU countries. Will it be able to continue to do both once we have left the EU?
Caroline Nokes
I thank my hon. Friend for that question. The answer is: absolutely. The proposals we have put forward in the White Paper will ensure that there is absolutely no discrimination in respect of those seeking to come here from EU countries and from non-EU countries.
Emma Little Pengelly (Belfast South) (DUP)
In Northern Ireland, social care is fully integrated within the Department of Health. Many of the jobs that supply vital services to older people, both in care homes and across the community, are filled by EU mainland nationals. What conversations has the Department had with the Department of Health in Northern Ireland to ensure this vital flow of employment and workers can continue post Brexit?
Caroline Nokes
I thank the hon. Lady for that question. It is important to note that just last week I held a roundtable with representatives from the Scottish and Welsh Governments, and civil servants from Northern Ireland. It is important that we make sure we have a future immigration system that works for the whole of the UK, and we are determined to do so.
Emma Dent Coad (Kensington) (Lab)
Teresa Pearce (Erith and Thamesmead) (Lab)
The Minister for Immigration (Caroline Nokes)
The Home Office’s comprehensive vulnerability strategy ensures that the EU settlement scheme is accessible for all, including children in care. The Home Office is engaged with the Department for Education, the Local Government Association and the Association of Directors of Children’s Services to assess the needs of this group and ensure that they are met. I have welcomed their ongoing contribution to the development of the scheme.
Teresa Pearce
The Home Office’s testing of the EU settlement scheme has highlighted real challenges for this group of vulnerable children. Across five authorities, only 16 children have secured settled status. Does she agree that, as corporate parents to these vulnerable children, we should be giving automatic settled status, and that those eligible for citizenship should have their fee waived to avoid any risk of them becoming undocumented and causing a second Windrush scandal?
Caroline Nokes
As the hon. Lady knows, five local authorities took part in the private test phase, making applications on behalf of children for whom they had full parental responsibility. They reported that the process was quick and easy for them to use. As I have said previously, we have a comprehensive vulnerability strategy and are working hard to make sure that the scheme is accessible and handles all those who are marginalised or at risk with the sensitivity that is required.
Sir Edward Leigh (Gainsborough) (Con)
Patricia Gibson (North Ayrshire and Arran) (SNP)
The Minister for Immigration (Caroline Nokes)
The hon. Lady will have heard me say earlier that we are working very hard with the social care sector and listening to organisations such as the Local Government Association. A couple of weeks ago, I met not just the LGA but the Convention of Scottish Local Authorities to talk about the importance of the social care sector and to make sure that our future immigration system is able to recruit people with the skills and the talents that we need to come to the whole of the United Kingdom.
Charlie Elphicke (Dover) (Con)
Caroline Nokes
My hon. Friend is right to emphasise that it absolutely is people traffickers and organised crime gangs who are encouraging people to make this extremely perilous crossing. We deploy aerial surveillance, but the House will appreciate that I will not be able to discuss our covert assets in detail. He is right to emphasise that we are working with a number of member states, including France, to facilitate returns. About 20 individuals who have crossed via small boat have been returned to date, and further returns are in progress.
Mr Steve Reed (Croydon North) (Lab/Co-op)
Caroline Nokes
The Government have made available £9 million of grant funding to charities and other organisations to support vulnerable people, including vulnerable adults in the care sector, through this process. We have already, through the test phase, been working closely with a number of local authorities, and there has been an extensive engagement process with the LGA and other local government bodies to make sure that we get this right.
Fiona Bruce (Congleton) (Con)
Caroline Nokes
The minimum income threshold was set after consideration of advice from the independent Migration Advisory Committee. The Supreme Court has endorsed the lawfulness of that approach and agrees that the minimum income requirement strikes a fair balance between the interests of UK citizens wishing to sponsor a non-EEA spouse and of the community in general.
Chris Green (Bolton West) (Con)
Draft Immigration, Nationality and Asylum (EU Exit) Regulations 2019
Caroline Nokes Excerpts(5 years, 7 months ago)
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The Minister for Immigration (Caroline Nokes)
I beg to move,
That the Committee has considered the draft Immigration, Nationality and Asylum (EU Exit) Regulations 2019.
Delivering a deal with the EU remains the Government’s priority. We are, nevertheless, preparing for a range of scenarios. As the Prime Minister has pointed out:
“The legal default in UK and EU law remains that the UK will leave the EU without a deal”
on 29 March
“unless something else is agreed.”—[Official Report, 13 March 2019; Vol. 656, c. 464.]
UK domestic law has given effect to the obligations in the fields of immigration, nationality and asylum that arise from our membership of the European Union. The UK has also been subject to directly effective EU law. When we leave the EU, aspects of our legislation and retained direct EU law will fail to operate effectively; if they are not modified or revoked by this instrument, they will contain deficiencies.
The draft regulations will make changes to a range of domestic primary and secondary legislation to prevent, remedy or mitigate deficiencies in law that arise from the UK’s exit from the EU. They will ensure that if the UK leaves the EU without a deal, our statute book will operate on exit day until new legislation on these issues is commenced.
First, the draft regulations will make the technical changes required to correct wording in our legislation that describes the UK in terms of our membership of the European Union or the European economic area. Those changes will not alter the legislation’s effect. Similarly, the draft regulations will make technical amendments to domestic legislation that refer to EU rights retained by the European Union (Withdrawal) Act 2018.
Secondly, the draft regulations will revoke relevant retained EU legislation relating to immigration. They will also revoke a number of instruments that give effect to the UK’s membership of the EU asylum acquis and that will be inoperable on exit. By leaving the EU, the UK will also leave the asylum acquis. The draft regulations will therefore revoke the Dublin regulation and the Eurodac regulation.
Thirdly, the draft regulations will make a number of transitional and saving provisions in relation to the measures that they will amend, so that the amendments in question do not have an inappropriate effect in respect of decisions or other actions taken before their commencement.
Finally, the draft regulations will apply the UK rules for criminality to EEA, Swiss and Turkish nationals. This amendment applies only to their conduct after exit. Our intention, which the Home Secretary has already announced, is to apply the same rules to new arrivals, irrespective of which country they come from.
The Government believe that we must plan for every eventuality, including a no-deal scenario. In introducing the draft regulations, we are taking practical steps to ensure that the UK statute book will operate effectively on exit in the event that the UK leaves the EU without a deal. The draft regulations will prevent deficiencies in immigration and asylum law that arise from the UK’s leaving the EU, and will ensure continuity until the Immigration and Social Security Co-ordination (EU Withdrawal) Bill allows the Government to introduce the future borders and immigration system. I commend the regulations to the Committee.
Caroline Nokes
I fear that I will not make a speech-ette, but there will certainly be no ploughing on regardless either. I am grateful for the Committee’s contributions to the debate and I will address some of the issues raised.
The hon. Member for Manchester, Gorton asked why we are not using the immigration Bill for these provisions. Of course, these provisions are very much in preparation for no deal, which is an eventuality that I do not want. The Government continue to work hard to secure a deal, but unless alternative arrangements are made, it is the default legal option. As he pointed out, the immigration Bill has just completed its Committee stage in the Commons and, to be frank, we do not expect it to have Royal Assent by 29 March, which is when these measures might be needed.
The use of secondary legislation and the immigration rules, as the hon. Gentleman mentioned, is a long-established method that we have used to make changes to the immigration system. Under those well-established procedures, such changes are still subject to proper parliamentary oversight and debate, including through Committees such as this. The hon. Gentleman will know, as we discussed at the Committee stage of the immigration Bill, that the Law Commission is currently conducting a public consultation on the simplification of the immigration rules, commissioned by the Government. We look forward to receiving its response and considering its report in due course. As he knows, I am on record as having said that such simplification is much needed.
The right hon. Member for East Ham and the shadow Minister mentioned the Dublin III regulation, which is arguably the most significant regulation revoked by this instrument. As Members will be aware, the Dublin regulation contains rules for establishing the criteria and mechanisms for determining the member state responsible for examining an asylum application lodged in a member state by a third-country national or a stateless person, and the legal framework for returning asylum seekers to, and accepting them from, the EU. This instrument ensures that the statute book will continue to function effectively for asylum in a no-deal scenario and provide transitional arrangements. Should the UK leave the EU with no deal, those Dublin requests relating to family reunification that are still pending resolution will continue to be considered under existing provisions. That would apply to any take-charge requests that we have received before exit.
Stephen Timms
I am grateful to the Minister for that reassurance that applications that are already in the system will continue to go forward. However, given that the Government have committed to seeking to extend the Dublin III arrangements for good if we get a deal, should this SI not provide for us to continue those arrangements in the event of no deal as well? I cannot think of any reason why leaving the EU without a deal should prove disadvantageous to families seeking reunion under the existing asylum arrangements.
Caroline Nokes
I welcome that intervention, but we have to be realistic about leaving the European Union and needing a cut-off date. Dublin is a reciprocal mechanism, and we cannot oblige other EU member states to comply with the process after the UK has left the EU. The right hon. Gentleman is absolutely correct: we want a comprehensive readmission agreement that could include family reunion, if that were reciprocated. However, given the wider issues at stake with the EU, including matters such as data adequacy, we cannot continue Dublin III post exit.
As a consequence of leaving the EU, the UK will no longer be a participating state in the Dublin regulation. That certainly presents a challenge, but it also presents us with an opportunity to seek new agreements with the EU on asylum that better reflect our position as a third country. Since 2016, we have accepted more Dublin transfers than we have returned to our EU partners. The latest available published data shows that 209 people were returned to the EU27 under Dublin 2018, meaning that returns under that regulation make up about 5% of total asylum returns.
This instrument is designed to prevent any deficiencies arising from the UK leaving the EU. It ensures continuity until the Immigration and Social Security Co-ordination (EU Withdrawal) Bill allows the Government to introduce the future new borders and immigration system. On that basis, I commend the regulations to the Committee.
Question put.
Draft Immigration (European Economic Area Nationals) (EU Exit) Order 2019
Caroline Nokes Excerpts(5 years, 7 months ago)
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The Minister for Immigration (Caroline Nokes)
I beg to move,
That the Committee has considered the draft Immigration (European Economic Area Nationals) (EU Exit) Order 2019.
It is a pleasure to serve under your chairmanship, Mr Austin. The Government’s priority is to protect the rights of European economic area and Swiss citizens living in the UK. Deal or no deal, they will be able to stay and apply to the EU settlement scheme, which will be fully open from 30 March. Delivering a deal with the EU remains the Government’s priority; nevertheless, we are preparing for a range of scenarios.
In a no-deal scenario, we will end free movement as soon as possible after exit, subject to parliamentary approval of the Immigration and Social Security Co-ordination (EU Withdrawal) Bill. Once free movement has ended in a no-deal scenario, our intention is that transitional immigration arrangements will be put in place until the new skills-based immigration system is introduced in January 2021. Let me be clear: the arrangements would not apply to EEA and Swiss nationals who were here by 29 March this year. They would apply to people seeking to come to the UK after we had withdrawn from the EU. Under the temporary arrangements, EEA and Swiss nationals would be granted three months’ leave to enter automatically, with no restriction on their ability to work or study. Their experience at the border would be unchanged, including their use of e-gates.
Michael Fabricant (Lichfield) (Con)
I am delighted with the idea of the motion, particularly as Iceland and Norway were two of my biggest clients when I was in business selling radio stations—that is not relevant, I know. What I would like to know is whether the measure is reciprocal. Will we have similar rights for United Kingdom citizens hoping to work in, say, Ríkisútvarpið or in the Norsk rikskringkasting in Oslo?
Caroline Nokes
Which is easy for my hon. Friend to say. In a deal scenario, it is certainly intended to be reciprocal, but, with no deal, it is a unilateral offer that we are making, because we value the contribution EU citizens can make.
If EEA and Swiss nationals wished to stay for longer than three months, they would need to apply for a 36-month European temporary leave to remain, beyond which they would need to apply under the new skills-based immigration system.
The draft order supports the approach I have just described. First, it provides the mechanism by which, in a no-deal scenario, EEA and Swiss citizens arriving after free movement has ended will automatically be granted three months’ leave to enter. Secondly, it makes changes to support the EU settlement scheme in both a deal and a no-deal scenario.
Vernon Coaker (Gedling) (Lab)
If someone is automatically granted entry, there will be no stamp or visa in their passport, so how will we know when the three months are up and they have to apply to stay on?
Caroline Nokes
The hon. Gentleman makes a point. I gently remind him that they receive no stamp in their passport now; they travel through e-gates with no stamp, and the order extends that right.
Caroline Nokes
If the hon. Gentleman stops chuntering from a sedentary position, that will allow me to finish responding to his first intervention. Those citizens will come through the e-gates and receive their automatic three months’ leave to enter, but beyond that it is important to reflect that we will have left the European Union and there will indeed be a change.
Vernon Coaker
I apologise for chuntering; I do not normally chunter—I normally shout. My question is: how will we know when the three months are up? Currently, they have the right to stay, but they will presumably have to leave after three months unless they apply to stay for longer. How will the enforcement authorities know that the three months are up?
Caroline Nokes
The hon. Gentleman is right to point out that we will be transitioning to the new system, so there will be very light-touch enforcement. It is important to reflect, however, that the process is changing until the point at which we introduce the new immigration system in 2021.
Nic Dakin (Scunthorpe) (Lab)
Would the Minister like to clarify what “light-touch enforcement” looks like?
Caroline Nokes
As we have always said, we will take a proportionate approach to EU citizens. It is important that people have the right to be here, but they must apply for temporary leave to remain. That is an important distinction. It is not our intention to have a robust enforcement process, but from 2021 people will be expected to have leave to be here. It is important that we reflect that, once the Bill that we took through Committee last week is on the statute book, free movement will have ended.
The order also provides that the settlement scheme leave granted to a Crown servant who is an EEA national, a member of Her Majesty’s forces or somebody accompanying them will not lapse because of an overseas posting.
Dr Philippa Whitford (Central Ayrshire) (SNP)
The Minister is obviously moving on to the exceptions, which I am sure most people will welcome. On the three-month period, the order says that people will be granted leave to enter for a limited period where specified circumstances are met. How will anyone know whether those specified circumstances are met if there will be no application, limit or checking? Is she implying that people can simply come in and stay for three months without any interaction?
Caroline Nokes
It is absolutely the Government’s intention that EEA nationals and Swiss nationals should be able to come through the border in the same way that they do now, using their passport either at an e-passport gate or a passport control point. There will be no checking; it will be the same process. We recognise that, until 2021, when the future borders and immigration system comes in, there will be a transitional period. It is absolutely our intention to facilitate the movement of EEA nationals so they can come and go without the requirement of a visa. Should they wish to stay for longer than a three-month period, the expectation is that they will have to apply for temporary leave to remain.
This order also facilitates overseas applications to the settlement scheme, and clarifies that scheme applicants will not need to pay the immigration health charge. These are important measures to support the delivery of the EU settlement scheme and our no-deal contingency planning. I commend the order to the Committee.
Vernon Coaker
I agree absolutely. That is the point I am making to the Minister. By the way, I agree with the hon. Member for Lichfield about reciprocal arrangements. The Opposition Front-Bench spokesman made the same point, and the Government will no doubt be arguing the point with other EU countries. Irrespective of the rights and wrongs of the policy, however, the least that the public can expect is that it will be bureaucratically cohesive. My point and that of the House of Lords is this: how can it be when we have no idea about how the three months will be judged? Will it be guessed? Will the employer, the university, the college or somebody in the family have to say? I say honestly to the Minister that nobody has a clue and that she needs to have a better answer about how enforcement will take place.
Let me ask another point about the bureaucracy. How long will the process take if somebody thinks, after a couple of months, that they might need to stay? What happens if they go beyond the three months but they are applying for indefinite leave to remain? Does that stop the enforcement action? I am saying this because sometimes I contact the Home Office and it takes months to get a reply. Again, the issue is the bureaucracy. I am not saying whether the policy is right or wrong, but what will happen? Is the enforcement action automatically put on hold if somebody has applied and they go beyond the three months? Is the enforcement action automatically stopped? I hope that I have made sense.
The Minister has confirmed that the application is free, but how long will it take? It would be helpful if she explained to the Committee what will happen with respect to all that process. Can she explain what “enforcement” means? Is it gentle persuasion, or what? Enforcement sometimes means people going round and forcibly removing individuals. Is that what we expect to happen in the worst circumstances? Is it a possibility?
Let me move on from the three months. If somebody gets indefinite leave to remain, is that forever? Does indefinite leave mean that they can stay? If somebody then leaves the country—
Caroline Nokes
I want to make to the hon. Gentleman a really important point of clarification. He has repeatedly used the phrase “indefinite leave to remain”. That is not what we are discussing: we are discussing temporary leave to remain.
Vernon Coaker
So after the three months, somebody has temporary leave to remain. Then they go back—outside the country. The Minister, in the measure, extends the period from two years to five years, when that temporary leave presumably stays—the Minister will have to explain that, because there is confusion. The explanatory note talks about this, and the House of Lords Committee has written about it. In relation to the temporary arrangements, if the period for which somebody can be outside the country is extended from two years to five years, how will they prove that they have that entitlement if there is no stamp in their passport, or no document?
Caroline Nokes
It is important to make this distinction. The five years for which somebody can be outside the country does not relate to the European temporary leave to remain; it relates to the EU settled status scheme. Those are two quite separate things.
Caroline Nokes
I am very grateful for the Committee’s contributions—not least the suggestion that I am about to eat this elephant one bite at a time. A number of specific issues have been raised, and I will try to address each in turn.
The hon. Member for Manchester, Gorton asked whether the draft order should have been included in the Immigration and Social Security Co-ordination (EU Withdrawal) Bill. I gently point out that these vital protections as part of the EU settled status scheme can be put in place now, before that Bill gets Royal Assent. If we had waited for the Bill, we would not have been able to open the EUSS fully by 30 March, which I am sure Members will agree is a significant priority.
The hon. Gentleman mentioned the Costa amendment, which of course the Government agreed to the week before last. Both we and the EU have been very clear that providing certainty for citizens is a priority, and of course—Members might expect me to say this this afternoon—the best way to do that is to secure a deal with the EU. Reaching an agreement remains the Government’s priority, but we did accept the amendment tabled by my hon. Friend the Member for South Leicestershire (Alberto Costa), and we have written to the EU to seek clarification on its position on ring-fencing the citizens’ rights part of the withdrawal agreement. The Foreign Secretary has written to all his counterparts, and we are holding further urgent discussions with EU member states to seek assurances on the rights of UK citizens in those states.
The hon. Gentleman asked why Swiss nationals are permitted only four years’ absence, as opposed to the five years we have indicated for EU nationals. For those granted settled status as Swiss citizens and their family members, the period of absence will be up to four consecutive years, which is in line with the citizens’ rights agreement negotiated with Switzerland and the reciprocal arrangements that will apply to UK nationals in Switzerland under that agreement. He sought assurance that resident EEA nationals who apply to the settlement scheme from overseas will be treated in the same way as those who apply in the UK. I confirm that that will be precisely the case.
I now turn to the knotty issue of European temporary leave to remain, which has occupied the concerns of many Members this evening, and what leave people should apply for after three months. I hope to be able to clarify that. In the event of no deal, and following the end of free movement, EEA and Swiss nationals would need to apply for European temporary leave to remain if they wished to stay longer than three months. There would be no restriction on their ability to work or to study. That would apply only in the event of no deal—as I said a few moments ago, we very much hope that there will be a deal—but it would allow EEA and Swiss nationals to stay in the UK temporarily for 36 months.
I absolutely heard the representations by the hon. Member for Central Ayrshire and others about the important issue of those studying at Scottish universities and those studying longer courses at universities in the rest of the UK. That issue is important, and I am listening very closely and considering advice on how we can best adapt the scheme to reflect that there may be people studying medicine, for example—as we all know, that course is a significantly longer than three years—or, of course, studying for PhDs.
Dr Whitford
I thank the Minister for coming to that subject, which is of particular concern. It says in the explanatory memorandum that there was no consultation, and it is very clear that there was no consultation with the Scottish Government or Scottish universities. Will the Minister undertake to explore this issue, both with respect to longer courses such as medicine and taking into account the fact that the norm in Scotland is a four-year honours course?
Caroline Nokes
The hon. Lady may be aware that as part of the future immigration system, I am consulting on specific issues, along with Home Office colleagues and officials across the whole United Kingdom. The 36-month temporary leave to remain is uppermost in the minds of organisations such as Universities UK, and representations were made about it in the Immigration and Social Security Co-ordination (EU Withdrawal) Bill Committee’s recent evidence sessions. Home Office officials and Ministers are very much alive to the issue.
The hon. Member for Manchester, Gorton mentioned the fee level for the European temporary leave to remain. He will be aware that we do not comment on leaks, but the announcement on fees will be made shortly. The European temporary leave to remain scheme is being developed, and would be delivered, using infrastructure already in place for the EU settlement scheme. In the event of a deal, we will not need the temporary leave to remain scheme; in the event of no deal, we would not expect the inflow of EEA citizens to be any greater than the number of people arriving during the implementation period between exit and 31 December 2020 in a deal scenario, who would otherwise have been eligible for the EU settlement scheme. We are therefore confident that we will have sufficient capacity to process applications.
Hon. Members asked about the EU settlement scheme, which is in its third public testing phase. I would like to give an update: there have now been more than 160,000 applications under the scheme, of which the vast majority have been settled within three days. We are pleased with the progress made, but of course we continue to keep it under very close observation.
Vernon Coaker
For the benefit of the Committee, that is 160,000 out of how many?
Caroline Nokes
The hon. Gentleman will be very well aware of the figure used: 3.5 million. I am sure that he cannot be unfamiliar with that figure, because we mention it a lot of the time.
As I said, the scheme is still in a testing phase. It is important to emphasise that it is still not fully open; if the draft order is approved, the scheme will open on 30 March and will then be free. I am sure that hon. Members will be relieved to hear that last week we laid before Parliament the statutory instrument that will enable us to make the scheme free and effect refunds to those who have already been through it. Individuals will not have to apply for refunds; they will be made automatically to the card originally used to pay the fee. In the relatively few instances in which the card has expired in the meantime, we will make provision to contact the relevant individuals and ensure that they are refunded.
Dr Whitford
The Minister says that in a deal situation, those who come for longer, such as students, will apply for settled status. They will not have been here for five years, so on what basis will they be able to apply? Someone who comes as a student will still require a visa to stay for a number of years, whether they stay permanently or go back after their time as a student.
Caroline Nokes
In a deal situation, an individual who comes here as a student will be perfectly entitled to apply for the EU settled status scheme. They do not have to have been here for five years; they can be granted pre-settled status and then accrue the five years over their stay in the UK. Some students may well not want to do so, because they may intend to leave after their period of study, but in a deal scenario, that option will be open to them.
Dr Whitford
May I ask the Minister to clarify that point? If students or people coming for a circumscribed period do not want to apply for settled status, will the temporary leave to remain still exist? She suggested that it would exist only in a no-deal scenario.
Caroline Nokes
The hon. Lady is right to pick up that point. Temporary leave to remain is a mechanism that we intend to use in a no-deal situation, not in a deal situation. In a deal situation, people will have exactly the same rights as they have now to come, apply for the settled status scheme and stay for the duration of their studies. She is right to highlight the issue of those who may be here for longer; these are matters on which we are in intense discussion, both with our EU counterparts and with the Department for Education.
Several hon. Members asked about right to work and right to rent checks. In our December White Paper, the Government made it clear that there will be no changes to the system of right to work or rent checks until the future border and immigration system is introduced at the start of 2021. In the meantime, European economic area nationals will continue to be able to demonstrate a right to work or rent by using a national passport or ID card. Alternatively, they may use the online checking service if they have been granted status under the EU settlement scheme. Non-EEA family members will use Home Office documentation. We have made it clear that we will not require employers to conduct retrospective checks on their existing EEA workers when the future border and immigration system is introduced.
Caroline Nokes
I want to cover some more ground, because I am conscious that if I do not complete my comments, there will be a vote at 7.30 pm without my having responded to many of the points that have already been made.
The hon. Member for Central Ayrshire raised the issue of how individuals would know whether they had met the conditions to qualify for automatic leave. The draft order sets out the conditions that need to be met to qualify for automatic leave. They include a person being an EEA or Swiss national; holding an EEA or Swiss passport or national identity card; requiring leave to enter—that is, not having been previously resident in the UK before it leaves the European Union; and being entitled to apply for the EU settlement scheme.
A number of Members raised the issue of enforcement and how we would establish whether people had been here for more than three months. Those EEA and Swiss nationals who arrive after free movement has ended, in a no-deal scenario, should apply for European temporary leave to remain if they wish to stay longer. I am clear on the importance of clear communication, so that individuals understand their status. Upstream communications would seek to ensure that individuals are aware of the requirement to apply for European temporary leave to remain if they wish to stay longer than three months.
The Home Office is working closely with other Departments on communicating the immigration arrangements in a no-deal scenario to key sectors and stakeholders. That includes information on gov.uk to reassure inbound travellers, which went live on the 4th of this month. In addition, preparations are under way for a comprehensive communications campaign in two weeks. As I mentioned, the EU settled status scheme has so far received well over 160,000 applications. I have referred to the SI that will ensure that the scheme fee is lifted and that refunds will be possible.
A number of Members mentioned Windrush; the scheme’s design anticipates many of the Windrush issues. EEA nationals will have plenty of time to make an application. There are dedicated caseworking teams. Support is available for the vulnerable on the phone, in local libraries, in a dedicated call centre, and even in people’s homes. The Home Office has made available £9 million of grants to organisations working with the vulnerable, to enable them to assist those people in the process.
It is important that we provide clear communications on the rights of those in the UK before the UK leaves the EU, and on the requirements for those who arrive after the UK leaves. If EU citizens in the UK prior to exit fail to apply under the settled status scheme, they will not be here actively unlawfully in the same way as clandestine entrants or overstayers. We will give those who have reasonable grounds for missing the deadlines further opportunities to apply.
There was mention of entry via Ireland. We do not operate routine immigration controls on journeys from within the common travel area to the UK. However, EEA and Swiss citizens entering from Ireland will benefit from the leave by order provisions. Those entering from the Crown dependencies will already have leave granted by the islands, recognised by the UK under our integrated legal framework.
The hon. Members for Central Ayrshire and for Glasgow Central raised the subject of women who might be in abusive relationships. We accept a wide range of documents to evidence five years of residence, and dedicated casework teams will help applicants to prove their residence. As I said, we are providing £9 million of funding to help those with vulnerabilities, which is important to ensure they can access the support services we have targeted specifically at them.
I was asked in which circumstances leave would be cancelled at the border. The automatic leave to enter provision will ensure that we can continue to smooth the passage of legitimate travellers through the border, while maintaining the security of the borders. The ability to cancel leave is therefore a key element in making sure we maintain the correct balance.
A question was raised about whether the EU settled status scheme was compliant with the requirements of the general data protection regulation. We take our data protection and security responsibility very seriously. All our data activity must be compliant with the data protection legislation. We want to reassure applicants that we do not allow access to their information by any unauthorised person or body, and can share data only where it is absolutely necessary and where we have a legal basis for doing so.
There are some good examples of where the ability to share data has been of benefit, not least in the settled status scheme’s ability to share information with HMRC and the Department for Work and Pensions; that has enabled a significant majority of those going through the process to have achieved settled status already, without having to provide any additional information. The hon. Member for Gedling spoke about the complexity of the immigration rules, and I have some sympathy with his view. He may not yet be aware of the Law Commission’s consultation on the immigration rules, which is specifically designed to make them simpler and more straightforward, but I urge him and all hon. Members to participate in it.
Caroline Nokes
The hon. Gentleman wishes them luck; on my first day as Immigration Minister, I made the point that the more than 1,000 pages of immigration guidance and rules was excessive, and asked what steps we could take to simplify them. I very much hope that this process with the Law Commission and, indeed, the future borders and immigration system will be simpler and more straightforward than our current system, which of course has evolved over many decades.
Questions were raised about how long the European temporary leave to remain applications would take. As I have said, we intend to use the architecture of the EU settled status scheme and for the applications to be similarly streamlined. Some 75% of applicants in the most recent phase of the EU settled status scheme received their decision within three days.
There were also questions raised about the automatic leave provisions allowing individuals to travel into and out of the UK, and to be granted leave to enter for three months at a time on each arrival. This arrangement is absolutely intended to avoid a cliff edge and to smooth the passage of legitimate travellers across the border after the end of free movement. My hon. Friend the Member for Poole stressed the importance of avoiding cliff edges and allowing ourselves time to transition to the new borders and immigration system, which of course will not be introduced until January 2021.
The arrangements are, as was intended, similar to the status quo under EU law. EU nationals can live here for three months, but their right to stay in the UK for longer than three months is conditional; they must be a worker, a student or self-sufficient. Temporary leave to remain, just like settled status, will have a digital status, so people will be able to provide evidence of their right to be here. Non-EEA dependants will have biometric immigration cards.
The hon. Member for Glasgow Central mentioned allowing EEA nationals to travel into and out of the UK frequently. That is absolutely our intention. We want them to be able to travel smoothly and easily. Some of her other comments related more broadly to the immigration White Paper, which she will be aware we are engaging on over the course of this year, and not necessarily to the statutory instrument before us.
Dr Whitford
Has there been any discussion between the Minister’s Department and the DWP about the fact that women are being disenfranchised from benefits such as universal credit, as they are struggling to provide the necessary proof, even though the UK is still in the EU? She mentions that temporary leave to remain will be like settled status, but the three parts of settled status are the passport, the HMRC check and the criminal check. If someone has only been here three months, there will be no significant HMRC or criminal records.
Caroline Nokes
The suggestion would be that European temporary leave to remain should be about identity and declaration of any criminal convictions, as with the EU settled status scheme, and that it would omit the HMRC check—although the issue is not necessarily an HMRC check, but evidence of residence. The Government will take as evidence of residence a wide variety of proofs; it does not have to be an HMRC check.
The hon. Lady raised the question of conversations between the Home Office and the DWP; I must say that they occur on a regular basis. I am conscious, and not only from matters raised with me by right hon. and hon. Members across the House, that there have been occasional incidents to date, and those are problems we are working hard to iron out with the DWP.
Alison Thewliss
The reason I mentioned the £30,000 threshold was to ask whether it would apply to people who are coming in for three months at a time and working.
Caroline Nokes
As I said, the hon. Lady is confusing this with the future borders and immigration system, which will enter service in 2021. We are engaging on that threshold over the course of this year. It is absolutely not part of the order and applies not to European temporary leave to remain, but to the future borders and immigration system; I hope that hon. Members have understood that. With that, I commend the order to the Committee.
Question put.
Immigration Rules
Caroline Nokes Excerpts(5 years, 8 months ago)
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The Minister for Immigration (Caroline Nokes)
My right hon. Friend the Home Secretary is today laying before the House a statement of changes in Immigration Rules (HC 1919).
Entrepreneurs and investors play key roles in creating jobs and driving economic growth and innovation in the UK. The Government are committed to ensuring our immigration system continues to attract individuals from around the globe who will create innovative businesses in the UK and make substantial investments in our economy.
The changes we are introducing today include two new visa routes that enhance the UK’s offer to overseas entrepreneurial talent:
The start-up visa, announced by my right hon. Friend, the Home Secretary, in June 2018, will provide for those starting a new business for the first time in the UK.
The Innovator category will be for more experienced business people who have funds to invest in their business.
Both new categories will build on the endorsement model which has proved successful in our graduate entrepreneur and exceptional talent routes. Business experts, rather than the Home Office, will assess applicants’ business ideas for their innovation, viability and scalability, to identify those that will bring the greatest benefits to the UK. These organisations will include business accelerators, seed competitions and Government agencies, as well as higher education providers.
These new routes will replace the existing tier 1 entrepreneur and graduate entrepreneur routes, which have attracted some high-quality businesses, but the tier 1 entrepreneur route also has a long tail of low quality projects which contribute little or nothing to the wider UK economy. We will keep the existing routes open for a transitional period to allow those who are already in them to extend their stay and settle if they meet the existing requirements.
The immigration rules for the new routes are designed to be clearer and easier to read. Endorsement will reduce the evidence which applicants need to submit to the Home Office and provide them with greater certainty. The rules for extensions and settlement are more flexible, recognising there are many ways in which a business may benefit the economy. Accelerated settlement continues to be available for the most successful innovators, and extensions of stay are provided for those whose businesses fail and who wish to try a new business idea.
Parliamentarians and anti-corruption campaigners have expressed concerns about whether the tier 1 Investor route is sufficiently robust against financial crime. There is also more that can be done to increase the benefits of applicants’ investments to the UK economy.
We are therefore introducing changes that require investors to provide evidence of the source of any investment funds they have obtained within the last two years—up from 90 days at present. We are requiring UK banks to confirm they have carried out the checks they are required to make before opening an investment account. We are excluding investment in government bonds and tightening the rules around investment in companies.
We also intend to require investors to undergo enhanced checks on their financial situations and business histories, carried out by a UK regulated auditor, before making a visa application. We are working with industry to develop this requirement, with a view to introducing it in a future immigration rules change.
Minor changes are being made to the Government stateless leave policy to simplify the route to settlement for those who are genuinely stateless by granting an initial 5 years’ limited leave rather than 30 months’. We are also taking steps to protect the integrity of this route and deter abusive applications by making clearer in the rules that someone must show they have tried to obtain a nationality or right of permanent residence in a country they could reasonably expect to be entitled to, before benefitting from stateless leave.
In May last year, my right hon. Friend the Home Secretary, committed to look again at what we could do to make it easier for family members of Afghan locally engaged staff, who worked for UK forces in Afghanistan, to come here. Minor changes will give effect to this commitment, so those who were part of a family before the local staff member relocated can benefit from the relocation scheme rather than having to apply under family migration rules.
Finally, appendix H of the immigration rules contains a list of countries of low immigration risk whose nationals benefit from a streamlined application process for students. 2018 saw the expansion of visa national countries included in appendix H for the first time, which benefitted tens of thousands of students.
Careful consideration is given to which countries could be added to appendix H, taking into account objective analysis of a range of factors including the volume of students from a country and their tier 4 immigration compliance risk. The latest annual review of appendix H has resulted in the inclusion of Brazil, Kazakhstan, Mauritius, Oman, Peru and Tunisia; whilst Argentina, the Maldives, and Trinidad and Tobago are being removed from the list. This will result in approximately 4,500 additional students being able to benefit from appendix H.
The list of countries in appendix H will be kept under review and regularly updated to reflect the fact that countries’ risk profiles change over time.
[HCWS1388]
EU Settlement Scheme
Caroline Nokes Excerpts(5 years, 8 months ago)
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The Minister for Immigration (Caroline Nokes)
My right hon. Friend the Home Secretary is today laying before Parliament a statement of changes in immigration rules (HC 1919). The changes provide for the full opening of the EU settlement scheme from 30 March 2019 for resident EU citizens and their family members to obtain the UK immigration status which they will require in order to remain here permanently after the UK’s withdrawal from the European Union.
The Government are also laying before Parliament today two negative procedure statutory instruments: the Immigration and Nationality (Fees) (Refund, Waiver and Amendment) (EU Exit) Regulations 2019, which provide for no application fee for the scheme as announced by the Prime Minister on 21 January 2019, and the Immigration (European Economic Area Nationals) (EU Exit) Regulations 2019, which, in part, make changes associated with the scheme to other secondary legislation.
Protecting EU citizens’ rights remains our number one priority. We value the contribution they make to the social, economic and cultural fabric of the UK and we want them to stay. The best way to protect their rights, and those of UK nationals resident in the EU, is for the UK to reach a withdrawal agreement with the EU. However, as a responsible Government we are planning for all scenarios. In response to the proposal put forward by my hon. Friend the Member for South Leicestershire (Alberto Costa), my right hon. Friend the Secretary of State for Exiting the European Union has written to the EU about the possibility of a joint UK/EU commitment to preserving the citizens’ rights part of the withdrawal agreement in the event the UK withdraws from the EU without a deal. We await their response. The full opening of the EU settlement scheme will enable EU citizens and their family members to secure their UK immigration status whether a deal is reached or not.
In the light of the successful testing of the online application process for the scheme during the private beta test phases from August to December 2018, in which we received and processed more than 30,000 applications, a public beta test phase of the scheme began on 21 January 2019. This phase is open to resident EU citizens (and their EU citizen family members) with a valid passport, and to their non-EU citizen family members with a valid biometric residence card. In this public beta phase, we received more than 120,000 applications by the end of February 2019, enabling us to test the system at a greater scale than previous phases.
By the end of February 2019, more than 105,000 of these applications had been concluded, with 71% granted settled status, the rest granted pre-settled status and none refused. 75% of these applicants received their decision within three days and 80% of those who provided feedback found the online application process easy, or fairly easy, to complete. A report on the public beta test phase will be published after its conclusion on 30 March 2019.
This means that, since the opening of the initial private beta test phase on 28 August 2018, we had, by the end of February 2019, received more than 150,000 applications under the scheme, of which 135,000 (nearly 90%) had already been concluded. Of these concluded cases, 71% were granted settled status, with the rest granted pre-settled status and none refused.
The Government therefore intend to go ahead, as planned, with the full opening of the EU settlement scheme from 30 March 2019. The immigration rules for the scheme contained in the new appendix EU include the following changes to the scope of the scheme:
Resident citizens of the other European Economic Area (EEA) countries (Iceland, Liechtenstein and Norway) and of Switzerland, and their family members, will also be able to apply for UK immigration status under the scheme, in line with the citizens’ rights agreements reached with those countries;
EEA and Swiss citizens and certain family members will from 9 April 2019 be able to apply under the scheme from outside the UK, so that they can obtain status under it, based on their previous residence in the UK, without needing to travel here in order to make an online application;
The scheme will be open to the family members of British citizens who were exercising their free movement rights under EU law before returning to the UK (“Surinder Singh” cases), and to the family members of certain dual British/EU citizens (“Lounes” cases);
The scheme will be open to others lawfully resident in the UK by virtue of a “derivative right” to reside, based on wider EU law. These are “Chen carers” (the primary carer of a self-sufficient EEA citizen child), “Ibrahim and Teixeira” cases (a child of a former EEA citizen worker who is in education in the UK and their primary carer), and “Zambrano carers” (the primary carer of a British citizen child or dependent adult);
Residence in the Crown dependencies (Guernsey, Jersey and the Isle of Man) will be counted as UK residence for the purposes of the scheme, consistent with the wider operation of the common travel area;
EEA and Swiss citizens previously resident in the UK will be able to count as UK residence for the purposes of the scheme time spent on an overseas posting as a Crown servant, as will a partner or child of any nationality accompanying such a person or accompanying a member of HM Forces on an overseas posting. Such EEA and Swiss citizens have made a strong commitment to the UK by serving overseas in this way, or by accompanying someone who is doing so, and this should not disadvantage them under the scheme; and
Consistent with the basis on which the scheme will operate in a “no-deal” scenario, provision is made for the “specified date”, by which EEA and Swiss citizens will need to be continuously resident in the UK and certain relevant family relationships will need to be formed, to be 29 March 2019 in that scenario rather than 31 December 2020.
The new appendix EU also includes the following changes to the application process for the scheme:
There will be no application fee under the scheme, as the Prime Minister announced on 21 January 2019;
In certain circumstances, an application under the scheme will be made on a paper application form rather than through the online application process, including in “derivative right” cases where the applicant will need to provide additional information to that generally required under the scheme, and in exceptional circumstances, where provision of a paper application form complements the assisted digital support available for applicants who need help to complete the online application process;
Applicants in the UK will be able to rely on a wider range of documents as proof of their identity and nationality: their valid national identity card for an EEA or Swiss citizen, as well as their valid passport, and their valid passport or biometric residence permit for a non-EEA/Swiss citizen family member, as well as their valid biometric residence card;
There will be scope for applicants to submit their identity document by post to be checked and returned to them quickly, as an alternative, for EEA/Swiss citizens and for non-EEA/Swiss citizens with a biometric residence card, to use the identity verification app or visit one of the locations at which they can be helped to use this (of which there will be at least 50 across the UK by 30 March 2019); and
There will also be scope for the Secretary of State to accept alternative evidence of identity and nationality where the applicant is unable to provide the required document due to circumstances beyond their control or to compelling practical or compassionate reasons.
This statement of changes in immigration rules makes the following other provision associated with the EU settlement scheme:
Consistent with the draft withdrawal agreement with the EU, the new appendix EU (Family permit) provides for a non-EEA/Swiss citizen who is the family member of an EEA/Swiss citizen with status granted under the EU settlement scheme to apply for an entry clearance to join that EEA/Swiss citizen in the UK, or to accompany them here, whether for a short stay or to make an application under the scheme in the UK;
Changes to part 1 and part 9 of the rules to ensure that the grounds for the revocation of an entry clearance granted under appendix EU (Family permit), the refusal or cancellation of leave to enter held by virtue of a person having arrived in the UK with such an entry clearance, and the cancellation or curtailment of leave to enter or remain granted under appendix EU are consistent with the EU law public policy tests for conduct committed before 31 December 2020 (or before 29 March 2019 in a “no-deal” scenario) and with UK suitability provisions for conduct thereafter; and
Enables an application for administrative review of a decision under the scheme to be made outside the UK as well as within the UK, reflecting the scope for overseas applications under the scheme.
The full opening of the EU settlement scheme from 30 March 2019 will provide a straightforward and user-friendly means for resident EEA and Swiss citizens and their family members to remain here permanently. They make a huge contribution to our economy and society and the full opening of the scheme is tangible evidence that we want them to stay.
Further information about the EU settlement scheme is available on gov.uk and was summarised in my 12 February 2019 letter to colleagues. This contained links to a range of further communications material about the scheme which community organisations and others may find helpful, and is available at: https://www. gov.uk/government/publications/eu-settlement-scheme-update
[HCWS1387]
Immigration and Social Security Co-ordination (EU Withdrawal) Bill (Ninth sitting)
Caroline Nokes Excerpts(5 years, 8 months ago)
Public Bill CommitteesRead Full debate Read Hansard Text Read Debate Ministerial Extracts
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.
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.
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.
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.
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.
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?
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.
Families of Commonwealth Soldiers
Caroline Nokes Excerpts(5 years, 8 months ago)
Commons ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts
The Minister for Immigration (Caroline Nokes)
I thank the hon. Member for Inverness, Nairn, Badenoch and Strathspey (Drew Hendry) for bringing this subject to our attention during tonight’s debate. As he said, we are all rightly proud of our armed forces and the contribution made to the tri-services, whether it be the Army, the Royal Air Force or the Royal Navy, by our Commonwealth personnel. There is a long tradition of recruitment from the Commonwealth, which we are all proud to see continuing. Like the hon. Gentleman, I have a military base in my constituency—the School of Army Aviation at Middle Wallop.
In the Home Office, as in all other Departments, we are absolutely committed to upholding our obligations under the armed forces covenant, to ensure that no one who is serving or has served, or their family, is disadvantaged because of that service. The Home Office works closely with the Ministry of Defence and the individual services to make sure that those who choose to enlist in Her Majesty’s forces are well informed and fully aware of what the immigration requirements are for them and their families.
As the Immigration Minister, I am responsible for the borders, immigration and citizenship system, including how it applies to the armed forces. That includes our provisions for foreign and Commonwealth members of Her Majesty’s forces, foreign and Commonwealth family members of our service personnel and members of international armed forces and their families. I am also the Minister with responsibility for the armed forces covenant and veterans’ issues in the Home Office, which means I take a direct interest in the issues affecting our current and former service personnel and their families. I take extremely seriously my role of ensuring that the immigration system operates in supporting the families of our dedicated service personnel who join Her Majesty’s forces from Commonwealth countries. That involves keeping up to speed with the work conducted by the Ministry of Defence and other Departments in delivering our cross-Government commitment to our armed forces covenant obligations. It also includes keeping our policies relating to the armed forces under review, and acknowledging and championing where our policies are meeting our covenant obligations.
Drew Hendry
I am grateful for the Minister’s comments about the armed forces covenant. Will she take account of the request of the AFF and Cobseo foreign and Commonwealth cluster group urging the Government to consider the principles of the covenant with regard to the family needs of Commonwealth soldiers?
Caroline Nokes
Well, of course. I think I have already indicated that we have to look at the needs of not only service personnel and former service personnel but their families when considering our obligations under the covenant.
As the subject of today’s debate is families of commonwealth soldiers, I trust that hon. Members will find it helpful if I set out some of the Government’s policy background. From December 2013, a dedicated part of the immigration rules known as “Appendix Armed Forces” was introduced. As the name suggests, it was developed especially for the family members of those who had chosen to enlist as members of Her Majesty’s forces. The purpose of the change was to align dedicated routes with the broader immigration framework. It was also designed, with joint input from the MOD, to ensure that the provisions therein fulfilled our obligations under the armed forces covenant. Although the military sponsor remains exempt from immigration controls for the duration of their service, family members who come to the UK to join them are considered under the dedicated rules for Her Majesty’s forces families in “Appendix Armed Forces”.
As members of Her Majesty’s forces are regularly posted abroad and their families are rightly encouraged to accompany them, the rules make special provisions to account for that. First, a standard grant of limited leave for Her Majesty’s forces family members is for five years, rather than the 30 months that is standard for other family applications. Importantly, that saves them the cost of a second application fee. Secondly, time spent overseas on an accompanied posting is treated as time spent in the UK for immigration purposes. That means that any time spent accompanying their partner or parent on an overseas posting does not prejudice their eligibility for settlement after spending five years with limited leave. We are proud of our continuing commitment to our armed forces and their family members, including Commonwealth nationals who bravely offer their service to Her Majesty the Queen and our country. As I have indicated, I am committed to ensuring we uphold our obligations and do right by all members of the forces and their families.
As the Minister with overall responsibility for immigration matters, I am acutely aware that some of the applications received by my Department fall into what can be called the “complex cases”. I thank the hon. Gentleman for taking the trouble to set out his constituents’ cases in such detail. He will of course know that I cannot comment on the detail of individual cases on the Floor of the House. I hope he will understand that I can speak only in general terms. Without going into specifics, I accept that applications involving families can involve a variety of reasons, as family dynamics themselves can become ever more complex. This is not isolated from marriage or relationship breakdowns, the setting up of new family units and myriad other causes.
Although I shall certainly not speak about specifics, it is important to explain some of the background. These applications can be, by their very nature, time-consuming for decision makers to consider, and I make no apology for that. Although we are striving to have more streamlined processes, we must never lose sight of the fact that one of our primary duties is the protection of the public. That is especially true when we are looking at applications made on behalf of children. In some cases, the application may not have been properly completed, or there might be gaps in the provision of the information that we require to make a sound, well-balanced decision. In some instances, it may well be that we ask for more information, or that we ask to speak to the sponsor. Such additional measures are taken only when it would assist the decision-making process and other options have been exhausted. Understandably, that might be frustrating for some sponsors or applicants, but we will do it only to safeguard the interests of the applicant. All Members will be aware that we have statutory obligations to minors and to others who may be vulnerable for other reasons. Again, I make no apology for officials being assiduous in making responsible decisions.
My right hon. Friend the Home Secretary and I are conscious of the hon. Gentleman’s point about the income threshold and how it might affect Army families. Although I stand firmly by the principle of the minimum income threshold, I reassure the hon. Gentleman that I have listened carefully to the points he has made this evening.
The Government have a proud tradition of supporting our armed forces and recognising the invaluable service that they give to the United Kingdom, and that includes Commonwealth nationals who come to the UK to serve in the forces. That is one reason why we explicitly provide for Commonwealth personnel to obtain settled status after they have discharged, enabling them to remain in the UK permanently and, if they wish, to become British citizens. We also recognise the valuable role that families play in supporting our armed forces, which is why we have immigration rules specifically for forces family members. We greatly value the contribution and sacrifices made by Commonwealth members of the forces, and their families, in ensuring the security of the UK and protecting our citizens. We want them to go on playing an important role in our armed forces, and we are committed to upholding our obligations to them.
Question put and agreed to.
Immigration and Social Security Co-ordination (EU Withdrawal) Bill (Tenth sitting)
Caroline Nokes ExcerptsTuesday 5th March 2019
(5 years, 8 months ago)
Public Bill CommitteesRead Full debate Immigration and Social Security Co-ordination (EU Withdrawal) Bill 2017-19 View all Immigration and Social Security Co-ordination (EU Withdrawal) Bill 2017-19 Debates Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: Public Bill Committee Amendments as at 5 March 2019 - (5 Mar 2019)
Stuart C. McDonald (Cumbernauld, Kilsyth and Kirkintilloch East) (SNP)
I was going to speak to new clause 43, which covers largely the same ground as new clause 13. The latter clause is probably better drafted, and the hon. Lady has given a comprehensive speech in support of it, so I will simply say that I approve of everything she has said.
The Minister for Immigration (Caroline Nokes)
New clauses 13 and 43 focus on requiring the Government to report on the impacts of ending free movement and our future immigration rules, respectively, on European economic area and Swiss nationals. As I have said, I appreciate that some Committee members do not believe we should end free movement. I pay particular tribute to the hon. Member for Wirral South, who spoke passionately on the matter.
I emphasise again that the Government fully recognise the great contribution that migrant workers make to the UK. We remain committed to ensuring that the future immigration system caters for all sectors, and that it benefits the UK economy and our prosperity. We want the existing workforce to stay and we want to continue to attract other international workers to the UK. That is why the White Paper contains a route for skilled workers —it will, for the first time, encompass medium-skilled workers as well as the highly skilled—and a temporary worker route, which will enable people of all skill levels to come to the UK for up to 12 months. Neither of those routes will be subject to a cap on the number of visas granted.
The Government take seriously the economic impact on the UK economy of the proposals that we set out in the immigration White Paper in December and other measures in the Bill to end free movement. These proposals are designed to benefit the UK and to ensure that it continues to be a competitive place, including for medical research and innovation.
I share the hon. Lady’s concern that policies are properly evaluated and their full impact considered. That is why the immigration White Paper contained a full economic appraisal, running to more than 50 pages. It is a serious piece of work, which I encourage all hon. Members to study carefully. However, although it is considered and well thought-through, that appraisal is, by its nature, predictive. The proof of any immigration policy is its actual effect, which can be established only once the policy is in operation. We need to understand how policies work in practice, how businesses and employers react and how individual prospective migrants behave. We also need to understand the prevailing economic conditions in the UK and the countries from which migrants might come.
The hon. Lady spoke of the quality of the debate in the referendum of 2016. I well remember some comments that were made at that time about the views of experts. Perhaps unsurprisingly, I give quite a lot of credence to the views of experts, and accordingly I have a lot of sympathy with the sentiment behind the new clauses. I am pleased to tell the Committee that the Government already have plans in place to ensure there is an annual review of the kind that is envisaged.
Hon. Members will see that there is a section in chapter 3 of the immigration White Paper on the future role of the Migration Advisory Committee. It says that the Government will commission MAC to produce an annual report on key aspects of the UK’s immigration system. That strikes me as a comprehensive offer, and I think it would be best for any annual review to be undertaken by MAC, which has a good reputation for its independence and, of course, its expertise.
Accordingly, given our existing commitment to a proper, thorough and independent review of the operation of the future immigration system, I hope that hon. Members who have tabled these new clauses will see that they are not required and feel able to withdraw them.
Alison McGovern
I accept what the Minister says, and I beg to ask leave to withdraw the motion.
Clause, by leave, withdrawn.
New Clause 15
Settled status
‘(1) Any person who has their right of free movement removed by the provisions contained in this Act has the right of settled status in the United Kingdom if that person —
(a) is an EEA or Swiss national;
(b) is a family member of an EEA or Swiss national or person with derived rights;
(c) is resident in the United Kingdom on or prior to 31 December 2020.
(2) Any person who is entitled to settle status under subsection 1 has the same protection against expulsion as defined in Article 28 of Directive 2004/38/EC of the European Parliament and Council.
(3) The Secretary of State must ensure that any person entitled to settle status under subsection 1 receives proof of that status via a system of registration.
(4) The Secretary of State must issue a paper certificate confirming settled status to any person registered for settled status under this section.
(5) No fee may be charged for applications to register for settled status under this section.
(6) Any person who has acquired settled status under the provisions of subsection 1 is entitled to—
(a) remain in the United Kingdom indefinitely;
(b) apply for British citizenship;
(c) work in the United Kingdom;
(d) use the National Health Service;
(e) enrol in all educational courses in the United Kingdom;
(f) access all benefits and pensions, if they meet the eligibility requirements.
(7) A person’s right to use the National Health Service (d), enrol in educational courses (e) and access all benefits and pensions (f) under subsection (6), is the same as those for a British national.
(8) Any person who is entitled to settled status under subsection (1) loses their settled status only
(a) if they are absent from the United Kingdom for a period exceeding five continuous years after 31 December 2021 or
(b) if the criteria for expulsion as set out in Article 28 of Directive 2004/38/EC of the European Parliament and Council applies to them.
(9) In this section, “family member” has the meaning given in Directive 2004/38/EC of the European Parliament and Council.
(10) This section applies if the United Kingdom leaves the European Union —
(a) following a ratified and implemented withdrawal agreement; or
(b) without a ratified and implemented withdrawal agreement.’—(Afzal Khan.)
Brought up, and read the First time.
Caroline Nokes
I thank the hon. Members for Manchester, Gorton and for Sheffield Central for tabling new clauses 15 to 18. I am also grateful to the hon. Members for Cumbernauld, Kilsyth and Kirkintilloch East and for Paisley and Renfrewshire North for new clauses 33, 35, 47 to 49.
Before turning to the new clauses, I will say a few words about the proposal put forward by my hon. Friend the Member for South Leicestershire (Alberto Costa), to which the hon. Member for Sheffield Central referred and to which the House agreed unanimously last week. We and the EU have been clear that providing certainty for citizens is a priority. That is why we have written to the EU about ring-fencing the citizens’ rights part of the withdrawal agreement. As my right hon. Friend the Home Secretary said to the Home Affairs Committee last week, we should not underestimate the challenges involved in reaching such a joint UK-EU commitment. But we share a common goal in seeking to protect citizens’ rights. In the meantime, we will continue to seek commitments from the EU and its member states to protect the rights of UK nationals in the EU in the event of no deal.
The hon. Member for Sheffield Central raised a number of points specifically on the settled status scheme and the ease of applications. I must, once and for all, put to bed the allegation that people will not be able to use their iPhones to apply. Individuals will be able to use any desktop, laptop or mobile device to make an application. It is only during this current phase of testing that people need to use the EU Exit: ID Document Check app to verify their identity, which is currently—I use that word advisedly—available only on Android devices. When the scheme is fully live at the end of March, the use of the app will be entirely optional.
The app is just one of several ways in which people will be able to verify their identity, including by post or face to face at an application centre. Additional routes that will be available to have identity documents checked include 50 locations where applicants will be able to have their passports scanned and verified. We are also rolling out additional digital support, which I saw in operation at the Barbican library some months ago, and a dedicated telephone advice and support service is also available. It is important to the Government that we make it as easy as possible for people to apply, and the Home Secretary continues to work very closely with Apple on the upgrades to its systems—not ours—required in order to have a chip-check device available on iOS.
There was a question about pre-settled status, which we grant to people with fewer than five years’ residence. This is a well-established rule that derives from the EU’s free movement directive: after five years, a person gets permanent residence. The draft withdrawal agreement specifically refers to these rules. The Opposition’s proposal would mean that a person here for a day, and with no intention to make their life in the UK, would immediately get indefinite leave to remain.
I turn to the new clauses tabled by hon. Members. The new clauses would give automatic immigration status to EEA and Swiss nationals—to whom I will continue to refer as “EEA nationals” for brevity—and their family members resident in the UK. As I have explained before to the Committee, this is called a declaratory system: individuals would automatically acquire status without needing to apply, but could subsequently register for a document if they chose to, in a similar way to how current free movement rights operate.
I welcome the fact that hon. Members share my aim to secure the rights of EEA nationals who are resident in the UK, which we all agree is of the utmost importance. The Government devoted a great deal of thought to how best to manage the end of free movement residence rights as we leave the EU. As I have explained before, a declaratory system is not the answer. As I explained to the Committee last week, in a deal scenario the EEA regulations that implement the free movement directive will remain in force until the end of the implementation period on 31 December 2020 and will be saved for the six-month grace period thereafter.
In a no-deal scenario, clause 4 of the Bill will save the EEA regulations from the date when they are repealed by schedule 1, and these will apply for people who are resident before exit day. This will maintain their current position until the deadline for applying under the settlement scheme expires in December 2020, and will ensure there is no change in their status as a result of Brexit until then. EEA nationals and their family members will be able to secure their immigration status in UK law after EU exit through the settlement scheme, which provides a quick and easy way for EEA nationals and their family members to apply for and be granted status. As the hon. Member for Sheffield Central pointed out, this will now be free of charge.
The overwhelming majority of EEA nationals will need only to prove their identity, demonstrate residence in the UK and declare any criminal convictions. We will work with applicants to ensure that they are granted the status to which they are entitled. The scheme has, of course, been designed to comply with the Government’s obligations under the European convention on human rights. I take such obligations incredibly seriously, and they are applied by default to everything the Government do. Although new clause 18 is well-intentioned, it is unnecessary.
Some hon. Members might think that a so-called declaratory system would be better for EEA nationals, as it would provide them with an immigration status without their needing to apply. Although I understand why hon. Members wish to make the new system as streamlined as possible, I disagree with the proposals for a declaratory system. As I have said previously, requiring EEA nationals to apply for and receive a formal grant of status via the settlement scheme is key to ensuring that life continues smoothly for them in the future. Resident EEA nationals will be able to use their settled or pre-settled status to distinguish themselves from EEA nationals arriving in the UK in the future. In addition, a declaratory system for the resident population would provide much less incentive to apply for status and thereby receive the documentation that will enable them to prove that status.
Stuart C. McDonald
The incentive is there because, in order to be able to work, rent and access services, people will need to have a document that proves they have settled status. Can the Minister address what exactly is going to happen and what the status will be of the hundreds of thousands of people—we heard about them in evidence—who will miss the deadline if this system is not declaratory?
Caroline Nokes
We covered this point previously in the evidence sessions and also last week. The Government are absolutely determined to have a proportionate approach to those who miss the deadline and to assist those who have challenges through vulnerability, to make sure that they do indeed go through the settled status scheme.
It is important to us to reflect that people will want to be able to evidence their status here. However, at some point in the future we have to be able to draw a distinction between those who arrived before we left the EU and within the implementation period and those who arrived afterwards. Having a large proportion of this cohort legally entitled to a status but with no formal evidence to prove it would lead to confusion among employers and service providers and make it difficult for individuals to prove their right to benefits and services to which they are entitled.
In the longer term, it could also make it more difficult for them to prove that they have a legal right to reside in the UK. I am sure that Committee members will agree that that is not the outcome we want.
Stuart C. McDonald
It does not make it one iota more difficult for people to prove their status, because they will be using the same scheme. The only difference a declaratory system makes is that on the day after the application deadline there will not be hundreds of thousands of people without status. It will be just as easy for people to prove their status because they are using exactly the same scheme.
Caroline Nokes
The hon. Gentleman will be aware that it is the Government’s intention for there not to be hundreds of thousands of people without status and to ensure that people are assisted through the scheme where necessary. I was alarmed earlier today to hear information about a councillor from the hon. Gentleman’s own party who was encouraging others not to apply. I am sure we would all agree that that is the worst piece of advice that any elected representative could give.
I have taken incredibly seriously the lessons learned from Windrush, where individuals became entangled in measures intended to tackle illegal migration precisely because they did not hold the documentation that they needed. It is absolutely crucial that people understand their immigration status and the basis on which they have a right to remain in the UK. We have been developing plans for the EU settlement scheme. As we have been developing those plans, we have received queries about various groups of EU citizens who believe that they were here lawfully, but who are not meeting the requirements of the free movement directive.
Last week, I used the oft-quoted example of the househusband who did not have comprehensive sickness insurance, or carers who could not demonstrate the role that they were undertaking. We are catering for cases such as those through the scheme, but it illustrates the peril of declaratory systems, which lull people into a false sense of security. The EU agreed that a constitutive system was a sensible option for the UK to take and other member states are following this option for UK nationals. The Government’s approach already achieves the purpose of the amendments. I ask hon. Members to withdraw new clause 15 and not to move the others, for the reasons outlined.
I turn to the other new clauses, which relate to the EU settlement scheme. I thank hon. Members for new clause 33, which seeks to remove any deadline for applications under that scheme. However, removing the deadline is not appropriate for a number of reasons. EEA nationals will benefit from applying to the scheme before the deadline, so that they can prove their rights in the UK. After the deadline, the future immigration system will be in place; future arrivals will have different rights from those of the resident population. Without a deadline, there would be little incentive for the resident population to apply. Reducing the incentive to apply might lead to an increased number of EEA nationals failing to apply for and receive a grant of status. Those individuals would consequently face difficulty in proving their right to benefits and services to which they are entitled.
Stuart C. McDonald
The Minister is not addressing the point I am making; in fact, she is almost making contradictory arguments—that this will reduce the incentive to apply and create difficulties in accessing benefits, services and so on. That is exactly the point, though. The difficulty in applying for benefits, accessing services, accommodation and everything else is exactly the incentive that means that people will apply for status. Yet the Minister is seeking to argue both ways.
Caroline Nokes
I do not think I am seeking to argue both ways. I fear that with no deadline people will not see the need to apply, yet then might—in a moment of crisis or emergency—come up against the need to be able to immediately prove their status without having the ability to do so.
Stuart C. McDonald
That is the critical difference between the two proposals. Under the Government’s current proposals, at that critical moment these people will have no status, and—despite vague assurances about proportionate responses, whatever that means—many of these people will find themselves without any status at all. If our proposals are correct, at the very least they will have the right to be in this country at that moment of crisis. It will simply be a matter of getting a document to prove it, if they still have that ability.
Caroline Nokes
The hon. Gentleman says that it is “simply” a matter of getting the evidence to prove status, but as we saw—I am loth to go there—with the Windrush crisis, there were people who had absolutely every right to be in this country but could not evidence it. We are determined not to repeat that with this scheme: the incentive is to encourage people to apply, to provide them with a deadline, and to make sure that as many as possible can evidence their status so that they are not doing so in an emergency situation. As I have said several times, we will take a pragmatic approach to those who have a good reason for missing the deadline by allowing them to apply late. That is a requirement of the withdrawal agreement, and we will follow the same approach in a no-deal scenario.
New clause 35 would require the Home Office to provide EEA nationals with a physical document evidencing their status under the EU settlement scheme. The digital status given to EEA nationals will be a secure and permanent record held by the Home Office that is accessible to the holder at any time, but which cannot be lost or stolen. Users will be able to choose to allow third parties, such as employers, to have time-limited access to relevant information to demonstrate their status. By giving individuals direct access to their own data and the ability to share this at their discretion with service providers, we are giving them greater transparency and control over which data is shared. People will be able to better understand their rights and keep information updated.
We have already trialled this service with non-EU-national migrants to view and share their right-to-work information with employers, and the service has been well received by those involved. With an online service, we can also ensure that employers and others required to check a person’s status see only the information relevant to their need. Using a physical document as evidence of status—as has been the practice to date—does none of this. It can also cause significant problems when documents are lost, stolen, damaged, expired or in the process of being renewed. Physical documents are also more open to forgery and fraud: something we must seek to avoid.
Additionally, there are individuals whose documents are controlled by others, such as in cases of domestic violence, modern slavery and human trafficking. Moving to an online status is a step forward in tackling those who seek to control others. A digital status is also much easier to use for the visually impaired and dyslexic users who may have difficulty reading a physical document.
Stuart C. McDonald
There are some valid points in what the Minister says, but surely there is a compromise here. Could there not be the online system but some sort of physical document parallel to that, so that we had the best of both worlds?
Caroline Nokes
As the hon. Gentleman will be aware, the Government are moving to a position of everything being digital by default. We think that the correct way forward. I have enjoyed my exchanges with the3million. The hon. Member for Sheffield Central suggested that I had not adequately engaged with them. I have met them on several occasions and listened to their views, but we do differ on the determination that we have to use the digital status. We believe that any 21st-century Government would want to do that.
Paul Blomfield
With my respect for the Minister I would not want it to be suggested that I was misrepresenting her engagement with the3million, and I am aware that she had productive discussions with them. However, there have been critical issues on which she has not been prepared to listen, and the issue of physical status documentation is one of them. It still eludes them, as it eludes us, why the Minister cannot agree to have a physical document available as an option for those who want it.
Caroline Nokes
I thank the hon. Gentleman for that suggestion. Just because I disagree, that does not mean that I have not listened. We have made a commitment to digital by default, which I think is the right way forward. I made a point earlier about the challenge of different types of document, and the difficulties that might be presented if some people could produce one sort of document and others were reliant on digital only. I happen to think—perhaps I spent a long six months as the Minister responsible for the Government Digital Service—that this is the right way forward. The Government have always been very clear that this is our direction of travel.
I understand that it represents a cultural change for many, and I am very conscious that many EU member states not only require an identity document to be held at all times, but enforce compulsory identification on request, for instance from police officers. That is very different from the way in which the UK behaves. We do not have those requirements, nor are they part of our culture. Our methods of proving identity and rights do not have to mirror what other countries do.
Paul Blomfield
I find it difficult to accept the Minister’s general statement that those are not part of our culture. It has been pretty clear from evidence from employers and landlords that they would find physical documents much easier to deal with. If she is wrong on this, and if we fail in our endeavours to make the amendment, will she agree to the Home Office reviewing the practice within a reasonable period of introducing it?
Caroline Nokes
From the demonstrations that I have had of the digital right-to-work check, and the work that I have done with the Landlords Consultative Panel surrounding the digital right to rent checks, we have seen a very simple and straightforward procedure where the individual can send a time-limited link to a prospective employer that does not require them to do a great deal of research to find digital status; it is there at the click of a mouse button. However, I am listening to the views put to me by the Committee, and will reflect on them over the next few weeks.
As I said, the new digital capability forms part of moving the UK’s immigration system to digital by default, and is a simpler, safer and more convenient system. The proposed new clause would be a step backwards in simplifying the current system. I therefore request that the hon. Member for Manchester, Gorton withdraw the new clause.
Afzal Khan
We wish to press new clause 15 to a vote.
Question put, That the clause be read a Second time.
Afzal Khan
I strongly agree with the new clause. I have been involved in campaigning on the TOEIC test issue. It is a burning injustice that is long overdue for resolution by the Home Office. Thousands of innocent students have spent years trying to clear their names. In Committee, we have discussed the terrible consequences of the “hostile environment”, and those all rained down on the students. I hoped that the issue would be resolved long before now, given that the scandal first broke five years ago. Given that the legal limbo continues, we support the new clause as a vehicle to compel Ministers to resolve it.
Caroline Nokes
I thank the hon. Member for Stretford and Urmston for tabling the new clause on behalf of the right hon. Member for East Ham. The new clause relates to the use of certificates to evidence knowledge of English. It raises an important issue, and I would like to explain the Government’s response to widespread abuse of English language testing facilities, which came to light in 2014.
The scale of the fraud—there is no doubt it was a fraud—is illustrated by the fact that so far more than 20 people have received criminal convictions for their role in facilitating the deception, and sentences totalling more than 60 years have been handed down. Further criminal trials are ongoing. There was also a strong link to wider abuse of the student visa route. The majority of individuals linked to the fraud were sponsored by private colleges rather than universities, many of whom the Home Office had significant concerns about well before “Panorama” uncovered the specific fraud. Indeed, 400 colleges who had sponsored students linked to the fraud had already had their licences revoked prior to 2014.
The Educational Testing Service had its licence to provide tests within the UK suspended in early February 2014 and was removed from the immigration rules on 1 July 2014. Approximately 20% of the tests taken in the UK were provided via ETS prior to its suspension.
During 2014, ETS systematically analysed all the TOEIC tests administered in the UK dating back to 2011 and classified them as either questionable or invalid. ETS categorised results as questionable where it had significant concerns about the test centres and sessions where they had been obtained.
We have always recognised that it was possible that a small number of students who took legitimate tests could have received a questionable result. That is why we ensured that those people were given the chance to resit a test or attend an interview before any action was taken against them. ETS categorised results as invalid only where the same voice was matched to two or more tests taken in different names, indicating that deception was likely to have been used.
Stuart C. McDonald
All this was a good few years before the Minister’s time in office, but was one of the fundamental problems here that the big multinational company responsible for messing up the test in the first place was then handed a blank cheque to mark its own homework afterwards? Why was that not handed to a completely independent body, rather than just letting ETS fix its own mess? How much did it have to pay in compensation to the Home Office?
Caroline Nokes
I reject the description of a global company making a mess of it. This was systematic fraud and deception—I indicated earlier the number of criminal convictions. This was not a mess; it was fraud. It is really important to remember that.
Stuart C. McDonald
It was a fraud, absolutely. It was far too easy to perpetrate. People employed by that company or at least subcontracted further down the line by that company were assisting people with their tests and allowing different people to sit the tests. The safeguards that the company put in place were clearly way short of what was required. It made a mess of things.
Caroline Nokes
That is absolutely why that company was suspended from the immigration rules in July of that year, which is perhaps evidence of why occasionally it is useful to use the immigration rules as a very swift device to resolve problems. I would point out that the report on the ETS system, which was undertaken by Professor Peter French, concluded that the number of false matches was likely to be very small and it was more likely that people were given the benefit of the doubt than that they were falsely flagged as having cheated.
Kate Green
One of the difficulties that the students face is that it is proving very difficult for them to get a copy of the recorded evidence on which ETS and, it would seem, the Home Office are relying. We seem to have a system that, in its impact, is not just on a number of individuals. I am quite surprised that the Minister is taking such a hard line, because even one failure of justice is one too many.
Caroline Nokes
As I indicated earlier, those who received a questionable result were given the opportunity to take an additional test or to attend an interview before any action was taken against them. I know that Members have expressed concern about the reliability of the matching. It is important to note that an independent expert report from Professor French, a professor of speech science, which reviewed the system, indicated that the number of false matches was likely to be very small. It is also worth noting that the courts, even when finding in favour of individuals, said that the evidence for invalid cases was enough to justify reasonable suspicion of fraud and for the Home Office to take action. It is then for individuals to address this evidence, as a number have, through appeal or judicial review.
The first part of the hon. Lady’s amendment requires the Secretary of State to disregard the results of any English language test for any EEA or Swiss national applying for settled status, pre-settled status, to work or study or for any other visa system established under the provisions of the Bill. We have set out very clearly our intention to create a single, skills-based immigration system. English language ability will remain a key strand of the immigration requirements for many of those coming to work, study and settle in the UK. Although EEA nationals often have excellent English language skills, currently we exempt only nationals of majority English-speaking countries and those who have certain qualifications obtained in English, having shown their English language skills through a secure English language test.
Requiring EU citizens to obtain evidence of their English language would put them on a par with a citizen of any other non-majority English-speaking country under the current system. However, evidence of English language is not a requirement for settled or pre-settled applications, and no EEA or Swiss national applying under the settlement scheme will have to demonstrate their English language ability.
The Government believe it is a reasonable expectation that those coming to work or study in the UK are able to speak a satisfactory level of English. Therefore, evidence of English language will continue to be a requirement for other visa routes, such as study and skilled work routes.
Kate Green
I am grateful that the Minister says English language capability is not a requirement for settled status and pre-settled status. Will she confirm clearly that, given we know that a small number of EEA nationals have already taken this test and may not have passed it, failure to pass the test will not prevent them from being obtaining settled status or pre-settled status, nor will it put them at risk of removal or other sanctions?
Caroline Nokes
I think I can give that reassurance. When it comes to settled status or pre-settled status, there are only three requirements. We ask people to provide evidence of their identity, of their residence in the UK for five years for settled status and less for pre-settled status—enabling them to upgrade to settled status later—and of any criminal convictions.
The second part of the amendment provides for a review of the consequences of the licence issued to ETS to administer the English language test in the UK. As the hon. Lady will be aware, there has been significant scrutiny of this issue over the last five years in Parliament, the courts and the media. A specific inquiry was conducted by the Home Affairs Committee in 2016, during which the Home Office answered more than 100 detailed questions. Given the scrutiny that has already taken place, I do not believe it is necessary to require the Home Office to conduct a further review, and I also do not believe that this Bill, which sets out a framework for the future immigration system, is the correct vehicle to require reviews of previous Home Office actions that have little bearing on EEA or Swiss nationals.
I am aware that, following a meeting with the Home Secretary, the right hon. Member for East Ham passed on details of a further number of specific cases to the Home Office. I assure the hon. Lady that we will respond shortly on these cases and the wider issues that have been raised and continue to be raised. I appreciate that there is frustration at recent delays in response to individual representations, but that is because my right hon. Friend the Home Secretary and I both take seriously the issues that the right hon. Member for East Ham has raised.
I hope that the hon. Lady is satisfied from the evidence presented that the Bill is not the right vehicle to address any concerns she may have with the historic abuse of the English language test administered by ETS, and I respectfully ask her to withdraw her new clause.
Kate Green
I am a little disappointed by the tone of the Minister’s response. There is no doubt that, as she says, there has been cheating, both corporate and individual. It is unfortunate to adduce other cases that were nothing to do with ETS and the TOEIC case in particular, to imply that there is some general culture of cheating that these students were a part of. We know that specific cases that have been brought either to the Home Secretary and considered carefully, as she says, or to the courts, often have been found in the appellants’ favour. The courts have been quite firm in some of their wording, making it quite clear that it is the Government who have failed to discharge the burden of proof that sits on them and not some legal failure on the part of the students to make their case.
Afzal Khan
We support these amendments. I make two brief comments. First, the EU settlement scheme will entail an enormous amount of data sharing between the Home Office and other Departments. It is right that the terms of this data sharing should be transparent. Secondly, the possibility of EU citizens’ data being passed on by the Home Office has understandably caused concern among those citizens. We do not want to create any barriers to EU citizens applying for settled status. Getting a high take-up rate is already going to be extremely difficult. Providing for explicit consent for data to be shared or reused would be a sensible limit on Government powers.
Caroline Nokes
I am grateful to the hon. Members for their new clauses 24 to 29 and 31. Given the similar effects of some of these new clauses, I will consider new clauses 24 to 28 and 31 together before speaking to new clause 29 separately.
These clauses cover a broad range of issues, including the gathering and using of data and matters relating to the automated residency checks under the EU settlement scheme. As I have said previously, securing the rights of citizens has always been our priority and we have delivered on this commitment. The draft withdrawal agreement published on 14 November 2018 guarantees the rights of EU citizens and their family members living in the UK, and those of UK nationals living in the EU.
The basis of the withdrawal agreement aligns closely to that of existing free movement rules with respect to when a person becomes a permanent resident and, in the case of the EU settlement scheme, acquires settled status. Significantly, the withdrawal agreement states that this assessment should be based not only on length of residence but on the fact that a person is exercising EU treaty rights for the whole qualifying period. We have, however, gone further than this and are being more generous to all EU citizens in the UK and to those who arrived during the implementation period. We do not test whether a person is exercising treaty rights—for example whether they are in work, studying or have comprehensive sickness insurance. Eligibility is based on residence alone, subject to criminality and security checks.
As part of the application process we will, where an applicant provides a national insurance number, conduct an automated check of residence based on tax and certain benefit records from HMRC and the DWP. We know that most EU citizens will have had some interaction with these departments and that this could demonstrate an applicant’s residence, either for the whole five-year period to qualify for settlement, or in part. While it is optional for an applicant to use the automated checks to prove their period of residency, in the test phases most have done so.
To date, 80% of the decisions made have been on the basis of this data alone. Where data exists, the automated checks replace the need for the applicant to submit any other form of evidence. The automated checks happen in real time as the application is completed, and the applicant is informed whether there is enough data to qualify for either settled or pre-settled status. Feedback from the three trial phases to date shows that people overwhelmingly like the simplicity of having their residence proved for them by these checks. The applicant is immediately informed if they need to provide additional documents and prompted to provide such documentation before completing their application.
In such instances, we will accept a range of documents as evidence, and they can be submitted digitally as part of the online application process. Where the applicant accepts the result of the automated check, no further evidence is required, and they will, subject to identity, security and criminality checks, be granted either settled or pre-settled status. The rules for assessing continuous residence are already set out in the immigration rules. The automated checks simply apply those principles to the data provided by HMRC and the DWP. New clauses 26 and 28, although well intentioned, are therefore unnecessary.
I understand the sentiment behind new clauses 24, 25 and 27, on publishing details of the automated residency checks in the scheme, as well as our memorandum of understanding with HMRC and the DWP. We will of course be completely transparent on how those checks work, as it is to everyone’s benefit for us to do so. I confirm that we will publish the MOU before the scheme is fully launched. We will also publish further materials, including more guidance on why automated checks may not return the expected data. The EU settlement scheme is still in the test phase, and it is important that we continue to amend our processes and design as we progress through the phased roll-out. I hope that offers reassurance to hon. Members.
On new clause 31, it may be helpful if I explain the different stages of the application process. When an applicant receives a wholly or partially unsuccessful result from the automated residency check, they are still in the middle of the application process and they have completed only some of the online form. They have therefore not yet submitted an application. Informing an applicant of why data has not matched is likely to increase the risk of fraud and identity abuse. The new clause would change the focus of the scheme from granting status to investigating the data quality of employers or of the DWP and HMRC. We consider that a distraction that would cause unnecessary delays for applicants.
I am sure all hon. Members on this Committee share my desire to keep the application process simple and quick in providing results. For the reasons I have given, the new clause is not consistent with those aims. In most cases, it would be far simpler and more straightforward for applicants to submit other evidence to prove residence, rather than seeking to resolve why data has not matched. Of course, the applicant can take up that issue with HMRC or the DWP if they wish. It is already the case that applicants, like anyone else, can ask Government Departments what data is held about them and get incorrect information rectified, as per article 16 of the general data protection regulation.
Our guidance includes a suggested list of documents that could be provided as additional evidence. Examples include bank statements, a letter from a general practitioner, and certificates from school, college, university or an accredited educational or training organisation. I assure hon. Members that we will continue to work to improve the match rates of the automated checks. The test phase gives us the opportunity to test the EU settlement scheme and to make improvements to the process.
New clause 29 seeks to prevent information from those who apply to the EU settlement scheme from being passed to immigration enforcement. Let me confirm that we fully comply with all statutory responsibilities when processing data. The ways in which this information may be processed are set out in the Home Office’s “Borders, immigration and citizenship: privacy information notice”, which is available on gov.uk. Decisions on whether information should be shared with immigration enforcement are made on a case-by-case basis. It is important that the Home Office uses data in ways that are compatible with the purpose for which it is collected—for example, to assist future citizenship and passport applications and, if needs be, to combat immigration offences.
To conclude, I thank hon. Members for raising these important issues, but I hope the assurances I have provided will lead them not to press their new clauses.
Stuart C. McDonald
I am grateful to the Minister for her detailed answers, and particularly the undertaking to publish the MOU. I obviously need to take all that away and give it further thought, but there seemed to be a lot of helpful answers and pointers in there, so in the meantime, I beg to ask leave to withdraw the clause.
Clause, by leave, withdrawn.
New Clause 30
Extension of the remit of the Independent Chief Inspector of Borders and Immigration
“(1) The Independent Chief Inspector of Borders and Immigration shall have a remit to inspect any Government department insofar as the department is involved in the EU Settlement Scheme application process.
(2) Government departments in subsection (1) shall include the Department for Work and Pensions and Her Majesty’s Revenue and Customs insofar as they are involved in the automated residency checks for the EU Settlement Scheme.”—(Stuart C. McDonald.)
This new clause would mean that the Independent Chief Inspector of Borders and Immigration could inspect Government departments if they were involved in the EU Settlement Scheme application process.
Brought up, and read the First time.
Afzal Khan
This is a sensible amendment. The independent chief inspector of borders and immigration plays a vital role in inspecting and reporting on Home Office activities. Where the EU settlement scheme overlaps with other Departments, it is important that the inspector has the remit to inspect those. There is some ambiguity about the oversight of the EU settlement scheme if there is no deal. The withdrawal agreement makes it clear that if there is a deal, there will be an independent monitoring authority established to oversee the scheme.
The Minister, in her letter to me on 31 January, set out that if there is no deal, the independent chief inspector of borders and immigration will fulfil that function. Will they get any additional funding to carry it out? Will the Minister expand their remit to cover other Departments, to make sure the inspections are not limited in scope?
Caroline Nokes
I thank the hon. Member for Cumbernauld, Kilsyth and Kirkintilloch East for new clause 30. However, it is unnecessary. The UK Borders Act 2007 allows the independent chief inspector to inspect the efficiency and effectiveness of services provided by any person acting in relation to the discharge of immigration, nationality, asylum and customs functions. The EU settlement scheme is primarily an immigration function. Therefore, the independent chief inspector of borders and immigration already has the powers to inspect Government Departments involved in the EU settlement scheme application process, and that includes activities undertaken by the Department for Work and Pensions and Her Majesty’s Revenue and Customs in support of the EU settlement scheme application process. I therefore request the hon. Gentleman to withdraw the new clause.
Stuart C. McDonald
I am grateful to the Minister for answering my questions. I beg to ask leave to withdraw the clause.
Clause, by leave, withdrawn.
New Clause 32
No fees for applications under appendix EU to the Immigration Rules
“(1) No fees shall be chargeable for any EEA or Swiss national making an application for leave to remain (whether for settled status or pre-settled status) under appendix EU to the Immigration Rules.
(2) No fee shall be chargeable for any EEA or Swiss national seeking an administrative review of a decision to reject an application for leave to remain under appendix EU of the immigration rules (whether for settled status or pre-settled status), or to exercise a right of appeal against any such decision.
(3) No fee shall be chargeable for any new or alternative scheme introduced for EEA or Swiss nationals in place of appendix EU to the Immigration Rules.”—(Stuart C. McDonald.)
This new clause would ensure that the Government’s commitment to scrap the settled status fee, and extend the principle to any review or appeal, or any alternative scheme set up to replace appendix EU, is legally binding.
Brought up, and read the First time.
Afzal Khan
We support all these new clauses. I will speak briefly on new clause 38, which is in my name.
New clause 38 has three distinct provisions. The first would ensure that EEA and Swiss nationals applying for a visa are not charged above the cost price for that visa. As with many of our amendments, we would prefer that this apply to all migrants, but the scope of the Bill required us to narrow the new clause. The Home Office makes a profit of up to 800% on immigration applications from families, many of whom will not be well off. These applications will often be turned down on technicalities, forcing families to apply and pay again. As EEA nationals join migrants from the rest of the world coming into the UK under work visas, the risk of debt bondage increases. If workers are required to pay high fees for work visas, they will be vulnerable to exploitation and may be left working to pay off debts to recruiters.
The independent chief inspector of borders and immigration has completed an inspection of policies and practices relating to charging and fees. According to his website, he sent the report to the Home Office on 24 January. It would have been helpful to have it in preparation for this discussion. Can the Minister tell us when her Department will publish the report?
The second part of the new clause stipulates that no child with entitlement to register for British citizenship should be required to pay a fee. The principle is that those children, given their entitlement to British citizenship, will not be required to pay fees to realise that entitlement. This was the intention of the British Nationality Act 1981, which ended the principle that being born in the UK in itself makes someone British, when it gave no discretion to the Secretary of State, other than the formal role of registering the citizenship of any person with the entitlement.
The third part of the new clause would require that anyone naturalising as a British citizen should not pay above cost price. It is important to keep the questions of immigration and nationality separate, and to keep entitlement and naturalisation separate as well, despite the Government’s attempt to blur that distinction.
The fees are now £1,012 for children and £1,206 for adults. That is an enormous amount, and it disproportionately affects BME people and children under local authority care. The effect of being unable to pay these fees is that British people are subject to the hostile environment, including detention and temporary deportation, which is wholly unjust.
Caroline Nokes
I am grateful to the hon. Members for Cumbernauld, Kilsyth and Kirkintilloch East, for Paisley and Renfrewshire North and for Manchester, Gorton for having tabled new clauses 32, 38, 39 and 45.
It may be helpful to provide some background on this issue. Fees for border, immigration and citizenship products and services have been charged for a number of years, and they play a vital role in our country’s ability to run a sustainable system that minimises the burden on taxpayers. Each year, income from fees charged contributes enormously towards the running of our border, immigration and citizenship system. The charging framework for visa and immigration services delivered £1.35 billion in income in the last financial year. It is therefore true to say that fees paid by users play an absolutely critical role in this country’s ability to run an effective and sustainable system, and as I am sure members of the public rightly expect, to minimise the burden on UK taxpayers.
I also want to explain from the outset that we already have a legislative framework in place that governs fees. Fees are set and approved by Parliament through fees statutory instruments made under powers in the Immigration Act 2014. As hon. Members will be aware, the Prime Minister publicly confirmed that
“when we roll out the scheme in full on 30 March, the Government will waive the application fee so that there is no financial barrier for any EU nationals who wish to stay”—[Official Report, 21 January 2019; Vol. 653, c. 27.]
We will be amending existing fees legislation to implement that decision.
Outside of applications made under the EU settlement scheme, immigration and nationality fees legislation has always provided for some limited exceptions for paying application fees for limited and indefinite leave to remain. However, those exceptions are limited to specific circumstances, such as for those seeking asylum or fleeing domestic abuse, or where the requirement to pay the fee would lead to a breach of the European convention on human rights. Fee exceptions do not extend to applications made by individuals who are seeking to register or naturalise as a British citizen. That is because becoming a citizen is discretionary and not necessary to enable individuals to live, study and work in the UK, or to be eligible to benefit from appropriate services. Other exemptions are provided by separate regulations governing the immigration health surcharge.
To make provisions that are specific to certain nationalities as part of this Bill would be unfair to all users of the border, immigration and citizenship system.
Stuart C. McDonald
There have been a number of amendments where the Minister has made the point that it would be unfair to apply the provisions to EEA nationals only. We are, of course, constrained by the Bill, but if any unfairness arises from our new clauses and amendments, it is open to the Government to amend the Bill further, and even to amend the long title of the Bill. I am sure the Minister would have support from across the Committee in doing so.
Caroline Nokes
I thank the hon. Gentleman for that kind invitation. He will be aware that it is part of my duty under the Bill to make sure that we end free movement. The scope of the Bill is pretty much limited to that. As he highlighted, I do not want us to lead to a position where the Home Office discriminates against people on the basis of nationality.
I want to address some of the specific points relating to each new clause. Subsections (1) and (3) of new clause 32 provide that no application fee shall be chargeable under the EU settlement scheme, or for any successor scheme. While I am sympathetic to the intention behind subsection (1), I do not consider it necessary. We have a clear legislative framework in place for fees payable under the border, immigration and citizenship services. Therefore, new clause 32 would cut across the existing statutory framework for fees and would risk undermining the coherence of the current system.
Secondly, new clause 32 provides only for the removal of the application fee under the EU settlement scheme, which will only come into effect for applications made after the Bill is passed. As I have said, we are going further than that, and the announcement the Prime Minister made on 21 January makes it clear that the changes we are working to introduce through the fees regulations and the immigration rules will enable us to refund all EU settlement scheme application fees that have already been paid. The new clause is therefore to be unnecessary.
I will now turn to subsection (2) of new clause 32, which provides that EEA and Swiss nationals should not be charged a fee to appeal, or to administratively review, a decision not to grant settled status under the EU settlement scheme. I shall deal with administrative review and appeals separately. We have already discussed administrative review of a decision under the EU settlement scheme, for which the fee is set at £80 per review—the same fee that applies to administrative reviews of other immigration decisions. Where an administrative review is successful because there was a casework error in the original decision, the applicant will have their fee refunded.
In the context of applications under the EU settlement scheme, the right to an administrative review goes even further. An applicant who has been granted pre-settled status, but who believes that they qualify for settled status, can submit additional information that will be considered as part of their review. However, if the applicant cannot or does not wish to pay the fee for an administrative review, they have the alternative option of submitting a fresh application under the EU settlement scheme, which will be free. I therefore consider this part of the amendment to be unnecessary, because remedies that are free of charge are already available and if the administrative review is successful, the fee is refunded.
Stuart C. McDonald
We are talking about children who are entitled to UK citizenship, and it is wrong to say that alternative ways—long routes to settlement, costing many thousands of pounds—are an adequate alternative. We are talking about something that is precious to those children, and I urge the Minister to give us some indication of when the ongoing review might conclude.
Caroline Nokes
I thank the hon. Gentleman for his intervention. He is aware that the Home Secretary has said that he is keen to review the situation and keep our fee structure under careful consideration, but I regret that I cannot give the hon. Gentleman a deadline.
It is right to point out that we already provide exemptions for eligible individuals who apply for limited and indefinite leave to remain in the UK. That is a reflection of the fact that in some circumstances, grants of such leave are necessary to enable an applicant to enjoy his or her human rights—for example, where a person is destitute or there are exceptional financial circumstances, often relating to the welfare and best interests of a child.
Stuart C. McDonald
Those exemptions are good and it is absolutely right to have them, but why not have the same exemptions for kids who are entitled to British citizenship and who are supported by a local authority, or whose families are destitute? They are entitled to British citizenship. Why deprive them of it?
Caroline Nokes
As I have indicated, the Home Secretary is keen to keep the matter under review. We are looking closely at it, and particularly at child citizenship fees. In summary, the requirement to pay a fee for citizenship does not disproportionately interfere with human rights, because of the exemptions I have described. The requirement to pay a fee is not contrary to a child’s best interest, which is to be with their family. Not having citizenship does not prevent them from doing so. Any assessment of a child's best interests is intensely fact-sensitive, so it cannot be said, as a generalisation, that it will always be in a child’s best interests to acquire citizenship. It may, for example, be in his or her best interests to preserve links to another country. As I have set out, the proposals undermine our existing statutory framework for making provision relating to fees and charges in the Bill.
New clause 45(1) raises many of the same issues about British citizenship fees for EEA nationals as new clause 38(3) did, and I refer the Committee to my earlier comments. New clause 45(2) and (3) provide that the Secretary of State may not charge the child of a person who has exercised free movement rights, which are repealed by this Bill, a fee to register as a British citizen if that child is in receipt of local authority assistance or if that child or their parents cannot afford the fee. That addresses a point similar to that in new clause 38(2). I refer Members to my previous point: the Bill is not the appropriate place to address child citizenship fees, which we are considering in the round.
New clause 45(4) would require the Secretary of State to take steps to make persons who have exercised free movement rights aware of their rights to obtain British citizenship under the British Nationality Act 1981. Information about becoming a British citizen is already published in guidance on gov.uk, and we are committed to ensuring that information of that nature is fully accessible.
It is right that, in the run-up to and immediate aftermath of the UK’s departure from the EU, the Government’s communications focus on the EU settlement scheme and what EEA nationals in the UK need to do to secure their status. We are launching a wide-ranging marketing campaign to encourage EEA nationals to apply. We do, however, make it clear when explaining the rights afforded by settled status that they may include a right to apply for British citizenship, provided that eligibility requirements are met. I hope that that reassures the Committee that we are taking steps to make people aware of their rights.
I turn to new clause 39, which concerns the immigration skills charge. Hon. Members may be aware that the charge was introduced in April 2017 as part of a major reform of the tier 2 skilled worker route. It is designed to ensure that UK-based sponsoring employers make a contribution to the upskilling and training of the resident workforce. Investing in skills is vital to achieving our ambition to increase UK productivity.
Data shows that, on average, employers in the UK under-invest in training compared with other countries. The Government have always been clear that it is right that employers should be incentivised to contribute to the upskilling and training of workers, and we have taken a carefully considered approach to the application of the charge. That is why we have provided exemptions for employers sponsoring migrants working in PhD-level occupations, as specified in the immigration rules; students switching from tier 4 to tier 2 to take up a graduate-level position in the UK; and the intra-company transfer graduate trainee category. Those exemptions build on the Government’s strong post-study work offer for international students and are intended to protect the UK’s position as a centre of excellence for education and research.
Underlying MAC’s recommendation in its final report on EEA migration, which was published last September, is the importance of retaining the charge as a key counterbalance to the recommended abolition of the resident labour market test in the proposed future skilled worker route. This will ensure the continued protection of resident workers in the future system and will provide one element of control after free movement has ended. New clause 39 runs directly contrary to the advice of MAC, which believes that it would be appropriate to apply the charge to EEA nationals in the future.
It is important to note that in the future system, the charge will apply only to employers that sponsor migrant workers under the skilled worker route. It will not apply to individual migrants who may come to the UK to work temporarily under the transitional temporary work route, and who will not be sponsored by an individual employer.
As Committee members are aware, the Government are not complacent. We have set out our intention to engage with businesses and organisations over the next 12 months, and to listen to their concerns and thoughts in response to the proposals in the White Paper. Accordingly, for all the reasons I have given, I invite the hon. Member for Cumbernauld, Kilsyth and Kirkintilloch East to withdraw the new clause.
Stuart C. McDonald
I thank the Minister for her detailed answers. There was a lot of helpful information in there, but there was also a lot that I do not agree with and am not yet quite persuaded about. I will certainly persist, particularly on fees for the registration of children as British citizens, but that is for another day. In the meantime, I beg to ask leave to withdraw the motion.
Clause, by leave, withdrawn.
New Clause 37
Derived Rights
“(1) Any person who has resided in the UK with derived rights under relevant EU caselaw shall be treated for the purposes of an application for leave to remain under appendix EU of the Immigration Rules (whether for settled or pre-settled status) on the same basis as an EEA or Swiss national who has resided in the UK.
(2) In this section, ‘relevant EU caselaw’ means—
(a) Zambrano (Case C-34/09 of the European Court of Justice);
(b) Chen (Case C-200/02);
(c) Ibrahim (Case C-310/08) and Teixeira (Case C-480/08).”—(Stuart C. McDonald.)
This new clause would mean that non-EEA nationals with derived rights under EU caselaw would be treated on the same basis as EEA or Swiss nationals who had resided in the UK when applying for settled or pre-settled status under Appendix EU of the Immigration Rules.
Brought up, and read the First time.
Paul Blomfield
I will be even briefer, which I am sure will be generally welcomed. We support the new clause, which concerns an important group of people with derived rights who have been left without certainty about their position. There is a strong imperative for that to be resolved, and for us to extend the same rights to them as to others.
Caroline Nokes
I, too, will be as brief as I can. I thank the hon. Members for Cumbernauld, Kilsyth and Kirkintilloch East and for Paisley and Renfrewshire North for their new clause 37, which seeks to give those with a derivative right of residence access to the EU settlement scheme.
It may be helpful if I explain that a derivative right of residence is one that stems from the EU treaties rather than from the free movement directive, and it has been established through Court of Justice of the European Union judgments. The rights identified by the Chen, Ibrahim and Teixeira cases are protected by the draft withdrawal agreement. The rights of Zambrano carers are not protected by the agreement.
The Government have been clear that provision will be made in the immigration rules for individuals currently resident with a derivative right of residence. I fully appreciate that those people need certainty about their status. We are resolving the final details within Government, in consultation with other affected Departments. Subject to securing my colleagues’ agreement, I expect to be able to confirm the position for that cohort in the immigration rules to be laid before Parliament shortly.
In summary, the Government agree that we need to protect the rights of those who are resident here on the basis of derivative rights. We have already committed to making provision for them in the immigration rules, and we are just finalising precisely how we will achieve that. I hope to have further positive news for the hon. Member for Cumbernauld, Kilsyth and Kirkintilloch East shortly. For that reason, I ask him to consider whether it is necessary to press the new clause to a vote.
Stuart C. McDonald
That just goes to show that short exchanges can be useful. The only thing I would add is that I hope the Home Office scheme for these groups of people is as generous as possible and does not, for example, set them off on long routes to settlement with thousands of pounds of charges in between. I hope they are offered something close to, if not exactly the same as, what is offered to EEA or Swiss nationals. I am grateful to the Minister for her answer, and I look forward to finding out more very soon. In the meantime, I beg to ask leave to withdraw the motion.
Clause, by leave, withdrawn.
New Clause 44
No comprehensive sickness insurance requirement
“Rules in Appendix EU of the Immigration Rules, or any replacement scheme, may not include a requirement for an applicant for leave to remain (whether settled or pre-settled status) to show that they have or have ever had comprehensive sickness insurance.”—(Stuart C. McDonald.)
The withdrawal agreement allows for certain EU nationals to be required to show they have comprehensive sickness insurance. This new clause would mean that no such requirement would be implemented.
Brought up, and read the First time.
Paul Blomfield
We support the new clause. The Minister wrote to me and my hon. Friend the Member for Manchester, Gorton to say that the Government have no intention of requiring comprehensive sickness insurance, so I assume they would have no issue with putting it in legislation. If they agreed to do so, they would send a very strong signal of their intentions.
Caroline Nokes
I thank the hon. Members for Cumbernauld, Kilsyth and Kirkintilloch East and for Paisley and Renfrewshire North for their new clause 44, which seeks to ensure that the EU settlement scheme does not place a requirement on applicants to hold, or to have held, comprehensive sickness insurance. I welcome the intention of the new clause, but it is not necessary. The Government have been clear from the beginning that we would not be testing for comprehensive sickness insurance. We made that clear as early as June 2017, when we published our public document on safeguarding the position of EU citizens, and the Prime Minister reiterated it in October 2017 in her open letter to EU citizens.
Appendix EU to the immigration rules does not contain a requirement to have held comprehensive sickness insurance, and that will not change. Eligibility for the scheme will continue to be based on residence and not permitted activity. I therefore ask the hon. Member for Cumbernauld, Kilsyth and Kirkintilloch East to withdraw the clause.
Afzal Khan
We support this new clause. I spoke in the Second Reading debate on the private Member’s Bill that would have implemented these changes. I commend the hon. Member for Cumbernauld, Kilsyth and Kirkintilloch East for once again bringing this issue to our attention through this Bill.
Caroline Nokes
I am grateful to the hon. Member for Cumbernauld, Kilsyth and Kirkintilloch East, along with the hon. Member for Paisley and Renfrewshire North, for raising, through new clause 51, the important issue of refugees’ rights to family reunion.
The new clause is designed to allow EEA and Swiss national refugees, including those who are nationals of EEA countries that are not part of the EU, to sponsor certain family members to join them in the UK. I spoke last week about the inadmissibility of asylum claims from the EU and about the Spanish protocol and do not intend to repeat today what I said then. It is the Government’s view, which I hope all members of the Committee share, that all Swiss and EEA nationals are from safe countries and are highly unlikely to suffer a well-founded fear of persecution or serious harm there, save in very exceptional circumstances. For those reasons and because we do not foresee a change in these circumstances, we intend to continue our policy on the inadmissibility of asylum claims from EU nationals, as well as treating claims from Swiss and EEA nationals as clearly unfounded, post EU exit.
I hope that hon. Members can see that treating asylum seekers from Switzerland and the EEA differently from those from the rest of the world on the grounds of their nationality would be illogical and discriminatory. It would be unlikely to comply with our equalities obligations and would offer a clear avenue of challenge on human rights grounds. I appreciate that that may not have been the intention behind the new clause, but it would be its effect. In any event, in a deal scenario, which remains the Government’s priority, we will already be providing family reunification rights. New clause 51 is therefore unnecessary to secure the rights of EEA and Swiss nationals to sponsor their family members.
I know that hon. Members are keen to address refugee family reunion more broadly, and I am conscious that the hon. Member for Cumbernauld, Kilsyth and Kirkintilloch East asked a question about the private Member’s Bill promoted by the hon. Member for Na h-Eileanan an Iar. Of course, it is the usual channels that decide money resolutions. That is entirely outside my hands, but I can comment on the Government’s family reunion policy. That provides a safe and legal route to bring families together. It allows adult refugees who are granted protection in the UK to sponsor a partner and children under 18 to join them, if they formed part of the family unit before the sponsor fled their country. Under that policy, we have granted visas to more than 26,000 partners and children of those granted protection in the UK in the past five years; that is more than 5,000 people a year.
Furthermore, our family reunion policy offers clear discretion to grant leave outside the immigration rules. That caters for children over 18 where there are exceptional circumstances or compassionate factors—for example, where they would be left in a conflict zone or a dangerous situation.
The types of family member that the new clause is aimed at can apply under alternative routes. Under the immigration rules, adult refugees can sponsor adult dependent relatives. That includes parents, grandparents, children over 18 and siblings over 18 living overseas where, because of age, illness or disability, the person requires long-term personal care that can be provided only by their sponsor in the UK, and that will be without recourse to public funds.
Moreover, there are separate provisions in the rules to allow extended family who are adult refugees in the UK to sponsor children to come here where there are serious and compelling family or other considerations. That is an important measure, as it enables children to join family members in the UK through safe and legal means.
It is imperative that we think carefully about this issue. Adopting new clause 51 could significantly increase the number of people who could qualify to come here, not just from conflict regions, and irrespective of whether they needed international protection. That would risk reducing our capacity to assist the most vulnerable refugees.
We must also consider community and local authority capacity. I understand that this is a complex and emotive issue, which is why we are listening carefully to calls to extend family reunion and closely following the passage of the private Members’ Bills on this subject, and will continue our productive discussions with key partners. It is particularly important to me that hon. Members are reassured that we are taking this matter seriously, and I hope that I have gone some way in ensuring that. For those reasons, I invite the hon. Member for Cumbernauld, Kilsyth and Kirkintilloch East to withdraw new clause 51.
Afzal Khan
We support the new clauses. As has been set out by the TUC and Focus on Labour Exploitation, it is essential that migrants are able to claim their rights at work. That means not being arrested for criminal offences when attempting to report abusive employers. Our labour market enforcement capacity is one of the weakest in Europe. We need to set high standards for wages and workers’ conditions, significantly improve our inspection capacity, and remove the offence of illegal working. This offence makes it less likely that people will come forward to the UK national referral for trafficking and modern slavery.
We know that many trafficking victims are already in immigration detention. In her evidence to us, Bella Sankey from Detention Action provided a powerful example of a Chinese woman who was a victim of trafficking. She was picked up at a brothel after a tip-off, but instead of being treated as a victim of modern-day slavery and trafficking, she was taken to a detention centre and held for six months. Clearly, many things went wrong at many stages of that woman’s journey through the immigration system, but removing the offence of illegal working would at least help to remove one barrier to her getting the help she needs.
Caroline Nokes
I am grateful to hon. Members for tabling these amendments. I also welcome the opportunity to explain how the offence of illegal working will be applied to EEA and Swiss nationals after we have left the EU, and how our approach to the EU settlement scheme will minimise any risk of those nationals being subject to the offence of illegal working post-EU exit. The Government have made clear our commitment to protecting the rights of EEA and Swiss nationals who are resident in the UK before exit. I recognise the concerns and the intention behind both new clauses, but they are unnecessary and discriminatory. They are also incompatible with our commitment in the White Paper to establishing a single, skills-based immigration system for all migrants coming to live and work in the UK.
Kate Green
I beg to move, That the clause be read a Second time.
This new clause would prevent EEA and Swiss families with children under the age of 18 from being given the right to remain in the UK without being allowed to access public funds. I am grateful to the Refugee and Migrant Children’s Consortium and, particularly, the Children’s Society for helping me to prepare for this debate.
In light of what the Minister has been saying in response to a number of recent new clauses, I am aware that she will probably argue that this would be discriminatory. However, I point out that there is a very strong moral imperative on us to ensure the wellbeing of every child in this country. In particular, we are talking about the children of EEA nationals, many of whom will themselves be entitled to British citizenship or on a ten-year path to settlement.
I do not believe that the “no recourse to public funds” provisions in the immigration system are fair or necessary. We already have a very robust social security system with tough, stringent tests of people’s need for benefits and entitlement to access them. I also think it is wrong to put people in a position where they may be working and contributing to this country, in many cases through tax and national insurance contributions, but none the less are unable to avail themselves of our benefits system, to support their families and, in particular, their children.
We can see that lack of access to support for these children is very damaging. It includes, for example, lack of access to free school meals, social security benefits, and free nursery places, which are offered to disadvantaged two-year-olds. Not only is that extremely damaging to each individual child’s wellbeing, it is damaging to the welfare of the whole country in the long term. We should bear in mind that the majority of these children are likely to stay here and continue to be part of our community.
When families have no recourse to public funds, but children are at risk of destitution, there is an immediate short-term cost, which falls on local authorities. Under section 17 of the Children Act 1989, local authorities are required to take action to prevent children from falling into destitution. The number of such children is increasing for a number of local authorities, and they simply do not have the resources to discharge their statutory obligations adequately. For example, my own borough of Trafford is already facing a substantial shortfall in its children’s services budget for the future.
The significant difficulties that the section 17 provisions place on local authorities are growing and are likely to grow further after Brexit. If the Minister is not minded to accept the exact wording of my new clause, I think it is incumbent on the Government, if they continue to rely on local authorities to pick up the tab, to ensure that the local authorities involved are adequately resourced to do so.
It is extremely difficult for families subject to a “no recourse to public funds” order to have that condition removed from their immigration status. It is very difficult for them to get advice on that matter. As we heard in earlier debates, they are unlikely to be able to access legal aid to make a case for that condition to be reconsidered.
I hope that the Minister will be able to say something strong to the Committee, which will assure us that the “no recourse to public funds” condition will not be applied to children in a way that will leave them destitute. I hope that she will be able to say specifically that those who do not get settled status by the application deadline, or who only attain pre-settled status, will still be able to access all mainstream benefits and will not be subject to “no recourse to public funds” provisions.
I hope she will also be able to say that she will take forward conversations with her colleagues in other Government Departments, particularly the Department for Work and Pensions and the Ministry of Housing, Communities and Local Government, so that we can ensure that we have a proper, comprehensive and adequate system of support for families with children, and that the “no recourse to public funds” condition will not be maintained in a way that puts those children at risk of destitution.
Caroline Nokes
I am grateful to the hon. Member for Stretford and Urmston for proposing new clause 56 on recourse to public funds when granting leave to remain to EEA and Swiss nationals with children. I appreciate that the intention behind this new clause is clearly to protect the wellbeing of children. By way of background, EEA and Swiss nationals may currently access the benefits included in the new clause, broadly speaking only when they are exercising treaty rights through employment or self-employment, or where they have become permanent residents. The new clause would provide that EEA nationals here with a child, for whatever period, could qualify for benefits, thereby potentially creating new entitlements to benefits based solely on the EEA or Swiss nationality of the parent or legal guardian of the children. I am sure that that was not the intention.
As I have said before, the Government have been clear about their intention to protect the entitlements of EEA and Swiss nationals already resident here, as we leave the EU, and to introduce no new restrictions until the future skills-based immigration system is introduced. All leave issued under the EU settlement scheme does not and will not include a no recourse to public funds condition.
I should like to explain in a bit more detail. The new clause would under the future system provide a significant advantage to EEA and Swiss nationals over non-EEA nationals, who generally qualify for access to public funds only when they acquire indefinite leave to remain, subject to exceptions for refugees and other groups. We believe that that general qualifying threshold for access to benefits for migrants is the right one, as it reflects the strength of a migrant’s connection to the United Kingdom and the principle that migrants should come to the UK to contribute rather than to place pressures on taxpayer-funded services.
Non-EEA migrants coming to live in the UK are currently expected to provide for any children they have without recourse to public funds. There is no reasonable justification for adopting a different principle for EEA nationals arriving in the UK when the new system is introduced.
Further, EEA nationals entering the country under the future immigration system will still be eligible to qualify for contribution-based benefits once they have paid sufficient national insurance contributions. As with non-EEA nationals, full access to our benefits system would be available under the immigration rules after settled status was granted—usually after five years, on a route that leads to settlement.
As I have said, I share the hon. Lady’s concerns about the wellbeing of children. However, I reassure her and the other hon. Members who supported the new clause that the safeguards already in place for the vulnerable will be retained. For example, immigration legislation already provides that local authorities may intervene where required, regardless of the immigration status or nationality of the child or parent. However, it is only right that the future immigration system should also continue to play a part in ensuring that public funds are protected for the lawful residents of the UK, and in assuring the public that immigration continues to benefit the country as a whole.
Kate Green
The Minister is right to highlight again the role of local authorities, where support is required, but will she undertake to have ongoing discussions with her colleagues in other Departments—particularly the Ministry of Housing, Communities and Local Government—about funding for local authorities? Those that have particularly high numbers of such families face significant cost pressures, which they struggle to meet.
Caroline Nokes
The hon. Lady is right to point out the cost pressures on local authorities in relation to that role. I regularly meet not only Ministers, across Government, but the Local Government Association and the Convention of Scottish Local Authorities, which are always keen to reinforce the issues for me.
I hope that the hon. Lady will agree that the Government’s approach is right, and I invite her to withdraw the new clause.
Kate Green
I am grateful for the Minister’s understanding of the challenge that local authorities face and the importance of protecting every child in the country from the risk of destitution. I beg to ask to ask leave to withdraw the motion.
Clause, by leave, withdrawn.
New Clause 57
Short-term visas
‘(1) The Gangmasters (Licensing) Act 2004 is amended as follows.
(2) After Section 3(1)(c) insert—
“(d) construction work undertaken by EEA or Swiss nationals;
(e) cleaning work undertaken by EEA or Swiss nationals;
(f) care work undertaken by EEA or Swiss nationals;
(g) hospitality work undertaken by EEA or Swiss nationals.”
(3) After Section 3(2) insert—
“(2A) In subsection 1 above—
(a) “construction work” means work in the construction industry;
(b) “cleaning work” means work as a cleaner;
(c) “care work” means work as a carer;
(d) “hospitality work” means work in the hospitality and services sector.”
(4) After Section 4(5)(c) insert—
“(d) using or employing EEA or Swiss nationals to undertake construction work;
(e) using or employing EEA or Swiss nationals to undertake commercial cleaning activities;
(f) using or employing EEA or Swiss nationals to undertake care work;
(g) using or employing EEA or Swiss nationals to undertake work in the service industry, including but not limited to, hotels, restaurants, bars and nightclubs.””—(Kate Green.)
Brought up, and read the First time.
Afzal Khan
We support the new clause to expand the remit of the GLAA. The GLAA performs a vital role in safeguarding the rights of workers and it is right that that should extend to the widest categories of vulnerable workers. My final point, which my hon. Friend has already made, is that the GLAA is chronically under- funded. We need to have more respect for the job it does.
Caroline Nokes
I thank the hon. Member for Stretford and Urmston for introducing the new clause and giving us further opportunity to consider the critical matter of protecting the rights of migrant workers.
New clause 57 raises an important issue and I appreciate the intention behind it. As I indicated, I share the hon. Member’s concern that overseas workers—indeed, all workers—should be safe from abusive employment practices. Although I sympathise with the sentiment behind the new clause, I do not think it would be appropriate to change the Bill in the way proposed, for reasons I will explain.
First, it presumes that the employment practices for the sectors mentioned in the new clause are the same as the sectors currently licensed by the GLAA. They are not. The Gangmasters (Licensing) Act 2004 applies only to the agricultural, shellfish gathering, and food packaging and processing sectors, as that employment method is particular to those sectors. While gangmasters may be used in some cases, the practice is not prevalent in the supply of labour in the sectors covered by this new clause. In some sectors, such as construction, many workers are self-employed and in others workers are recruited directly, such as with people employed to do cleaning work.
If this new clause were to be passed, the consequence would be that many thousands of extra businesses—potentially every café or care home—would have to register as a gangmaster, with considerable expense but potentially little benefit. The new clause would in effect extend the scope of the Gangmasters (Licensing) Act 2004 to construction, cleaning, care or hospitality work, but only where that work is undertaken by EEA or Swiss nationals, and only where those individuals have come by that work through a particular route. That restriction does not sit comfortably in the existing regime, which defines scope through work sector and not through the characteristics of the individuals undertaking the work. The effect of the new clause would be to create a two-tier system, resulting in EEA and Swiss nationals receiving a greater degree of labour market protection.
The Government are fully committed to protecting the rights of migrant workers and I reassure the hon. Lady that the Government are giving active and serious consideration to these matters. I hope to be able to say more on that in the coming weeks. As I set out at length in earlier sittings, it is of the highest importance that everyone working within our economy is safe and is treated fairly and with respect. I am proud of the Government’s track record on this issue, with the introduction of the landmark Modern Slavery Act 2015 and the further powers we have given to the GLAA. We will not be complacent.
Let me be clear: migrants working lawfully in the UK are entitled to all the protections of UK law while they are here, whether it is entitlement to the minimum wage, health and safety legislation, working conditions, working time rules, maternity and paternity arrangements, the right to join a trade union, the right to strike, statutory rights, holiday and sick pay, and any of the other myriad protections that exist in UK law for workers. They apply to those who are in the UK on work visas every bit as much as they do for the resident workforce. That applies to both migrant workers who are here under the current immigration system and to those who may come in the future, under the new immigration system.
The Immigration Act 2016 created a new power to extend statutory licensing of gangmasters to new commercial sectors by secondary legislation, so the proposed new clause is not necessary. Although I am loth to say it, this demonstrates yet again that we could make the changes through the immigration rules, which might provide a convenient route to do so. In deciding whether to extend gangmaster licensing, the Government would need clear evidence that that is the right course and would draw advice from the Director of Labour Market Enforcement. I hope that having further considered the wider impacts of this new clause and heard my assurance that the protection of migrant workers is at the forefront of the Government’s thinking, the hon. Lady will feel able to withdraw the proposed new clause.
Kate Green
Yet again the Minister has missed the point about this new clause, as with others that apply to EEA nationals. Of course we would much rather apply such provisions to nationals of all countries, but as colleagues have said we are constrained by the scope of the Bill.
I am encouraged by some things the Minister has said, and particularly the possibility she sees of using the new immigration rules to extend the number of sectors covered by these provisions. I am not quite sure that it is right to say that some of the sectors we are talking about—construction, for example—do not make use of labour providers. I think they do. Self-employment status is often quasi self-employment in that sector. There is quite a lot of work that might be done with the Government to ensure that we have provisions that really work for the characteristics of those different sectors, whatever official names they may seek to attach to their model of labour requirement.
I am grateful that the Minister will say more about the Government’s plans for further protection of all workers. I am particularly interested in how those plans will benefit non-UK workers, including those coming in under immigration arrangements in the coming weeks. I very much encourage her to continue conversations with colleagues who take an interest in these matters and with the advocacy bodies that speak for these vulnerable workers, some of which gave the Committee very impressive evidence a couple of weeks ago.
In the light of the Minister’s encouraging response, I beg to ask leave to withdraw the motion.
Clause, by leave, withdrawn.
Question proposed, That the Chair do report the Bill to the House.
Caroline Nokes
As we have now concluded the Bill’s Committee stage, I thank both you, Mr Stringer, and your co-Chair, Sir David Amess, for your effective chairmanship and for keeping us all in order. It might be only me who tried your patience—I am sure other Members have a view on that. I know you have been advised throughout by the Clerks to the Committee, who have acted with a great deal of professionalism. I extend my gratitude to them.
I thank all the Committee members for their thoughtful consideration of the issues we have debated over the past few weeks. Although we by no means agreed on everything, we debated important points in a constructive spirit and considered a wide range of matters very carefully. I am particularly grateful to the Opposition spokespeople, the hon. Members for Manchester, Gorton and for Cumbernauld, Kilsyth and Kirkintilloch East—I have said that constituency name an awful lot over the past fortnight; I hope I have pronounced it correctly—for their valuable contributions on a range of important issues. I suspect those will not be their last words on the Bill.
I thank the policemen and the Doorkeepers, who kept us safe and ensured that everyone received the support they needed, and the staff of the Official Report, who ensured that all our pearls of wisdom were faithfully recorded. Finally, I thank my Bill team, who have been unfailingly good humoured in keeping me in line and helping me through my first Bill Committee in this role. I am very much indebted to them. I look forward to considering the Bill during its next stage.
Afzal Khan
May I add my thanks to you, Mr Stringer, and your colleague, Sir David Amess, for the excellent job you have done of steering us through the Bill? I thank the Clerks for all the help they have provided, not only here but outside this room. I also thank all the Committee members; like the Minister, this is my first attempt at a Bill Committee, so I am particularly grateful to my Front-Bench colleagues for all their help. Let us not forget all the other staff who helped us, too. I look forward to the next stage of the Bill.