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

Eleanor Smith Excerpts

Thursday 14th February 2019 Public Bill Committees

[Stuart C. McDonald]

Q Are you concerned, as things stand, about this cut-off point? Are you concerned that however well the Home Office does in registering as many folk as possible, tens of thousands—if not hundreds of thousands— will miss that deadline? Can you see a case for scrapping the deadline altogether, or for having some other compromise to prevent, for want of a better word, a Windrush-style situation from arising again?

Professor Peers: There is a case for having either a longer deadline or no deadline at all, or having some kind of fairly general excuse clause that gives the Home Office a lot of obligations—not necessarily discretion—to accept late applications for quite an open-ended series of reasons. Obviously, there will be people who do not know about it or understand it. I am in contact with people who know the system well and are campaigning about it and so on, but I realise that that is a bubble. There are a lot of EU citizens outside it who will not understand it very well or follow the details, or who will shake their heads and ignore it in the way you might ignore something like an ominous-looking bill. It would be much better to be as flexible as possible about subsequent future registration and various methods of forgiveness and excuses that people might need to invoke.

[Eleanor Smith (Wolverhampton South West) (Lab)]

Q My question is about the fact that the Home Office is saying it will grant settled status to someone for two years; I was going to ask whether you thought that was feasible, but I think you have answered that. Do you think the two years the Home Office is granting everybody is feasible? Do you think this can be done in that short space of time?

Professor Peers: It is quite hard to say. This is an app and an electronic process, but that is still a lot of people to go through the electronic process. I do not know about the technological feasibility of it. The difficulty will be with the people who do not get settled status, the people who do not apply and the people who get pre-settled status and argue that they should have had settled status. There will be those categories of people, and there will be some overlap with people who come in either during the transition period, if we have a withdrawal agreement, or during the unilateral, more truncated transition period if we have a no-deal scenario.

In that case, especially if there is no deal, I can imagine employers or landlords being confused about the situation: are these people necessarily entitled to be here or not? There will be people who could have had settled status but do not have it yet because they have not replied or they are waiting for a reply, as well as people who have a more limited leave to stay and more limited rights. Ultimately, there could be some confusion about telling those two groups apart, and we want to avoid a scenario where employers, landlords and banks start to become nervous about renting to or hiring people who are entitled to be here, especially because for a while we will have a category of people who are entitled to be here but do not have the documentation.

That is the background against which we could end up with a Windrush scenario, because at some point there would be greater demands for documentation and some of those people will not have got it or will not then be able to get it. If they have been self-employed, for instance, they may not have the records of all the work they did on an odd-job basis that would easily satisfy the system that they are entitled to be here.

[Caroline Nokes]

Q From the evidence we have heard from you in the course of the past 25 minutes or so, it is clear that the decision to end free movement following the outcome of the 2016 referendum has painted a complicated picture. Was that always an inevitable outcome, once we knew the result of the referendum?

Professor Peers: It was, obviously, the Government’s choice to interpret the referendum results as an end to free movement. There were other options, such as signing up to the same sort of relationship as Norway or Switzerland have with the European Union, or trying to negotiate another variation on that—although I do not know how willing the European Union would have been to negotiate a variation other than the Norwegian version of free movement minus a little bit. Given that free movement was so frequently mentioned during the referendum, the Government felt that was politically necessary.

It is inevitable that we will get into legal complications once we end free movement, because we have a big category of people who have been here on one basis and we are saying that they will all have to transfer to another basis. We are talking about 3 million people, and equivalent significant numbers of UK citizens in the EU. That is bound to be an issue.

--- Later in debate ---

[Paul Blomfield]

Critical issues such as the tier 2 salary cap have deliberately gone out to consultation, however, because there is no agreement within the Cabinet about what that should look like.

Joe Owen: There are bits that are still up for grabs, but in comparison with a lot of other areas, we have a clearer vision of the detail of the policy for after Brexit. There is an interesting question, between the Bill and the White Paper, about the vision and strategy—what is immigration for, after Brexit? That question is still missing and has been missing for quite a long time. The last immigration White Paper was in 2006, I think, and there has never really been a discussion about the aims and objectives of the immigration system.

In the most recent White Paper, there are conversations about salary thresholds and regulated qualifications framework levels, and quite detailed policy questions. At the front, in terms of aims and objectives, there are two pages that talk about being fair and balanced and working for the whole UK, but with no real idea of what that means and what the system is supposed to achieve. There is that gap. In terms of whether the Bill is quiet on the big issue, I think the White Paper is there.

There is a question about what the Bill should say about citizens’ rights, if anything. It is fair that, given what is in the withdrawal agreement as it stands, and the fact that it is a key part of the negotiation, it makes sense that that sits in the withdrawal agreement Bill, not least because there are some things in there about the precedent of EU law and so on, which is all best dealt with in a single case. If there is no contention—I have not heard much in the UK Parliament, I have heard nothing in the EU and I have heard nothing between the UK and the EU about disagreement with the citizens’ rights part of the withdrawal agreement—why has the withdrawal agreement Bill not been published in draft, or at least the areas that cover citizens’ rights? That would be a way of setting out in more detail what is likely to come down the track, for those who are uncertain about what is missing in this Bill, even if it is in draft and only covers certain sections of the withdrawal agreement.

[Eleanor Smith]

Q You mentioned the Americans and the figure of 45%, and we keep saying that it is realistic that we are trying to get 95%. Is that realistic? How is it feasible for the Home Office to do that in two years?

Joe Owen: It is very unrealistic that there will be 100%, although I may come to regret saying that. Considering that we do not entirely know how many EU citizens are in the UK and exactly where they are, trying to target them is a huge challenge. You have already heard from a number of people about the can’ts, the don’ts and the won’ts. There will be some who cannot get status, even if they want to, because they do not have the right information, they cannot access the internet or for other valid reasons. There will be the don’ts—children or elderly people, for example—who do not know that they need to apply. Then there are the won’ts, who are the people who say, “I completely disagree with this as a policy; I think it is ridiculous and I am not going to do it as a matter of principle.”

Those people will exist. The first two categories are likely to be filled with more vulnerable people, as previous people giving evidence have attested. There needs to be a recognition that designing for 100% is the wrong way to go. The right way to go is to make sure that there are sufficient safeguards and clarity in the system about what happens to people who do not have settled status at the end of the two years, possibly for very good reasons, and what will happen to those who we think do not have good reasons as to why they do not have settled status. Having clarity about what will happen to those people—they will inevitably exist—at the back end of the two years is really important.

[Nic Dakin]

Q What is your view about the proposals outlined in the European temporary leave to remain scheme for EU citizens who arrive in the UK after 29 March, in the event of no deal?

Joe Owen: As I have previously said, it seems like a workaround to a problem. There is a political imperative to do something to end free movement, but practically it is really difficult, because EU citizens need to be given time to apply; you need the White Paper and the new system needs to be up and running. Until there are those two things, it is almost impossible to meaningfully end free movement. We therefore have a system where, for citizens coming into the UK, it will be exactly as it is now; and then after three months, if they want to stay longer, they can apply for temporary registration, which will be largely a security check. There is nothing to enforce whether people have that or not. If I go to my employer at the end of 2020 with a European passport, they do not know if I am someone who has lived here for 30 years and has not claimed settled status yet, or if I turned up a year ago and I have not bothered to do the registration scheme. There is a real difficulty about how this will practically be enforced.

As I said, another issue is what happens at the back end, when the new system comes into place and people who are here—who have either registered or have not registered—apply for the new system. If they are unsuccessful, what happens to them and what is the treatment of them? What kicks in around that, again knowing that large groups of people are likely to be in that situation? People will be expecting that to be dealt with in a way that carries public confidence.