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

Gary Sambrook Excerpts

Committee stage & Committee Debate: 2nd sitting: House of Commons
Tuesday 9th June 2020 Public Bill Committees

[The Chair]

Order. I know it is unnatural, but you have to face us, or the microphones will not pick you up.

Adrian Berry: Sorry. There is a power in the European Union (Withdrawal Agreement) Act 2020 to create a right of appeal for those who are refused under the settlement scheme. A statutory instrument was laid and came into force on 27 January in the form of the Immigration (Citizens’ Rights Appeals) (EU Exit) Regulations 2020, which covers most of the terrain but, to deal with your point, does not cover invalid applications that are made under the EU settlement scheme, because they are not considered to have been properly made. There is no appeal right for those people. That would be a welcome amendment.

Briefly on a declaratory scheme, given how many people have been registered under the EU settlement scheme, there is a need to encourage maximum compliance and to make sure that deadlines are extended, if necessary, beyond June 2020 next year. There may come a point when the full merits of a declaratory scheme, which I would have supported at the outset, become more manifest to deal with the remaining cases, but at the moment we need to ensure compliance and a full subscription take-up of the scheme.

Bella Sankey: It is deeply problematic that there is not a declaratory scheme for EU citizens. Again, the echoes of Windrush should be considered. Wendy Williams, in her report published last month, found that the Windrush scandal was entirely “foreseeable and avoidable”.

At the time that the Immigration Act 2014 was passed, I worked for Liberty, the National Council for Civil Liberties, and we warned the Home Office that the Windrush scandal, and other scandals, would happen because of the hostile environment that was being introduced. I say again in 2020 that there will be a similar scandal, this time for EU citizens, because the very same problems that the Windrush generation encountered will be real and evident for EU citizens who do not manage to apply for the EU settled status scheme in time. Of course, they will often be people who are more vulnerable and in harder-to-reach groups, and will be made more marginalised by the fact that they have become essentially undocumented.

One of the other big problems with the Bill when thinking about redress and natural justice is that, at present, legal aid is not available in immigration cases. That was one of the many reasons why, during the Windrush scandal, people found themselves being detained and wrongfully deported. There was no access to lawyers for that generation that came to the UK post war to help us to rebuild. Similarly, there will be no access to lawyers for EU citizens who are seeking to regularise their status after the applications close. That is why one of the other amendments that Detention Action is proposing to the Bill is to bring civil legal aid back within scope, at the very least for article 8 cases where people’s private and family lives and human rights are at stake.

[Gary Sambrook (Birmingham, Northfield) (Con)]

Q Mr Berry, I sense your displeasure with clause 4, but earlier, in answer to Mr McDonald’s question, the FSB said that it was actually very happy with it, because it allows a degree of flexibility and allows the Government to respond to workforce demands and so on. Do you not think that business has a point, that flexibility should be built into the system?

Adrian Berry: The flexibility that you need to make individual rules about economic migration you get from the immigration rules, which are of course not the subject of this Bill. If you want to change part 6A, which contains the current points-based system for economic migration, the Secretary of State can lay new or amended immigration rules, with the assistance of the Immigration Minister.

Clause 4 here is designed to deal with primary legislation and retained EU law, not with the immigration rules, so if the FSB thinks the clause is changing the economic immigration rules system, it is wrong in that respect. It is changing primary legislation about the administration of immigration control, not the specific rules for economic migration, which are made under the immigration rules.

[Kate Green]

Q May I return, Mr Berry, to what you were saying earlier about the draft free trade agreement that the UK published in February and the associated social security co-ordination arrangements? What exactly is it that the UK is proposing to cover in those arrangements, which presumably would potentially be introduced using the provisions of clause 5 in this Bill? What is not being covered?

Adrian Berry: The draft social security treaty is attached to the draft free trade agreement, which is available on the Government website now, from last month. It includes short-term healthcare coverage for people who are travelling for short-term purposes, such as tourism and temporary work contracts, to receive what we call the EHIC card scheme. It also includes a system for old age pensions to be paid overseas in other EU member states and uprated to be equivalent to home pension rates here.

What is missing, and what we are losing, is disability pensions being paid overseas, and healthcare, which was attached to old age pensions and to disability pensions under the EU co-ordination regime, will no longer be attached for pensioners who retire in Spain, Cyprus or wherever, from 2021 onwards. At the moment, it is a bonus ball. If you get a pension paid overseas, healthcare coverage is included under the EU co-ordination regime and the bill is paid by the UK Treasury. In the new proposed UK treaty, that is going; it is just your old age pension uprating.

The UK has split the interrelationship between healthcare and social security and pensions, which is contained in the EU co-ordination regime, into two silos: social security and pensions in one silo, in this Bill, and healthcare arrangements under the Healthcare (European Economic Area and Switzerland Arrangements) Act 2019. There is no draft healthcare treaty attached to the UK’s draft free trade agreement at the moment, and no healthcare provisions included in this draft social security treaty. Both of those are missing.

Additionally missing is the S2 scheme, which we have at the moment, for people to make arrangements, prior to travel, to receive hard-to-find treatment in EU member states, if they cannot get NHS treatment in the UK. There is no S2 scheme for British citizens to go and receive that form of healthcare—healthcare that is unavailable here—and to get it in EU states. The cross-border health directive, which allows people to have their prescriptions and pick them up in EU states, will effectively be repealed. There is no provision for that in the draft social security treaty.

Who loses out? The disabled. They will not be able to get private health insurance to travel on holiday. It will have a direct and differential impact on people with physical and mental impairments. It will also have an impact on anybody who thinks they are going to be retiring to Spain, Italy or France. They will not have healthcare insurance there, even if they get their pension uprated. It is a big loss.