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

Holly Lynch Excerpts

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

[Kevin Foster]

Yes. Effectively, there are negotiations ongoing, and the issue is what happens if the Government reached an agreement and wished to implement it before that time.

Jeremy Morgan: I should start by saying that we were fairly careful in the representations that we made. We are a group that represents British citizens in Europe who are affected by Brexit and were there before Brexit. We have tended not to get into policy post the end of the transition period, simply because it is not within our remit to do so. It is for others to express views on that. Clearly, if a further agreement is made for rights that extend to others beyond those who are already in the EU, it is important that the Government should be able to implement that, but whether that is by primary legislation or regulations made at the time for that purpose is a matter for this Committee to decide. I do not think British in Europe would have a strong view about it.

[Holly Lynch (Halifax) (Lab)]

Q Perhaps I can come to Professor Ryan first. Thank you very much for your written submission to the Committee. Can you talk us through what you think might be missing from clause 2?

Professor Bernard Ryan: Certainly. First, I thank the Committee and the Chair for the invitation.

[The Chair]

By the way, I do not know how our other witness is going to hear you. The acoustics are not brilliant, and I suspect that they are quite a long way away. They are already having difficulty hearing anyway, so speak up loudly, slowly and clearly. Sorry to interrupt.

Professor Bernard Ryan: I will do my best.

I obviously welcome clause 2. I see it as addressing a longstanding gap in immigration law, which is a lack of clear provision for Irish citizens, notwithstanding the fact that there has not been a policy or practice of placing restrictions on them. As I see it, the clause addresses the legal status of Irish citizens who enter the United Kingdom from outside the common travel area, so I wholeheartedly welcome it.

There are some finer points where one might point to potential problems down the road. I identified several in my evidence. First, in regards to family migration, it is still left open a little whether Irish citizens who will have the freedom to enter and reside will be in the same position as British citizens with regard to sponsoring family members in every respect. I think that is something that could be addressed.

There is also a difficulty relating to deportation and exclusion. I certainly would not argue that Irish citizens should be exempt from those. They are citizens of another state, as it were, so it should be possible to deport and exclude, but what is the threshold is going to be? We know that the general threshold is conducive to the public good, but in practice that is not the threshold that is used for Irish citizens because of the common travel area. There is a much higher standard, so could that be written into legislation or could commitments be obtained during the passage of the Bill about how those powers will be used in relation to Irish citizens in the future?

My third suggestion would be to consider the situation of persons of Northern Ireland, to use the recent jargon. The Belfast Agreement, of course, permits people from Northern Ireland to identify as British, Irish or both, so for a focus on identifying as Irish, is there really sufficient provision in immigration law for people to do that? They are not guaranteed full equality as regards to family sponsorship, but they do not have immunity from deportation and exclusion either unless they assert British citizenship. In the grand scheme of things, it is a detailed point, but it is important in the Northern Irish context—[Interruption.]

[The Chair]

Could you hold on a moment, Professor Ryan? Can we check the line, please? Let us carry on.

[Holly Lynch]

Q In relation to deportation for Irish citizens, since 2007 the UK Government’s policy position has been to deport Irish citizens, as you mentioned, only where a court has recommended deportation in sentencing, or where the Secretary of State concludes, due to the exceptional circumstances of the case, that the public interest requires deportation. Are you aware of any examples of that happening in practice in recent history, and what were the circumstances?

Professor Bernard Ryan: I am afraid I do not have an answer to that. I have been following it, as it were, in relation to the policy statements, not in relation to individual cases.

--- Later in debate ---

[Kevin Foster]

Q I have two questions, one for each witness; I will ask them both and then we can just cover them off at the same time.

The first question is to Mr Goodhart. I noticed that the January 2018 report from Policy Exchange, “Immigration after Brexit”, welcomed the ending of free movement. As you will appreciate, the main provision of the Bill is to alter UK law to remove the provisions for free movement. I wondered how you saw that, and how you saw the system that will seek to replace it, which we confirmed in a policy statement in February.

My question to Ms Rutter is this: given, obviously, the area that she covers in her group’s interest, I wonder how she sees the working of the European settlement scheme, which has now had 3.5 million applications, in terms of securing the continuing rights of EU citizens in the UK, or EEA citizens in the UK to be exact, under the withdrawal agreement.

David Goodhart: A general comment on the Bill is that I think it is broadly welcome. Part of the motivation behind Brexit, and perhaps the 2019 election too, was a more moderate level of immigration. It is true that immigration has dropped down the list of things that people worry about, for obvious reasons, even before the covid crisis, but I think that was partly because people saw that the Government were actually doing something about it. And I think the Government have broadly got it right to focus very much on restricting lower-skill immigration.

I think the higher-skill immigration channels are probably somewhat more liberal even than the Migration Advisory Committee envisaged. I mean, there has been a big liberalisation both on the salary threshold and on the qualification threshold. Bringing the qualification threshold down from degree level to A-level is a big move, and it will be interesting to see whether those changes achieve the goal of an overall lower level of immigration. I think the perfectly reasonable and democratically willed goal is a lower equilibrium level of immigration without damaging the economy. That is the goal that the Government are hoping to achieve, and I think the measures they have introduced are likely to achieve that.

I think I would probably have gone for slightly tighter restrictions, perhaps keeping the degree-level qualification and then having more exemptions—the type of exemptions that we see in the agricultural sector and so on—because Governments have made promises about immigration many times in the last 15 years or so, and they have very clearly said that they want the overall levels to be lower. I think it is quite likely that in a couple of years’ time they will not really be significantly lower, and then that will set off a whole—but then we will have the levers, at least, to do something about that.

Jill Rutter: I would like to make some general points before coming to your question on the EU settlement scheme. I am going to draw from the National Conversation on Immigration, which is the biggest ever public engagement activity on this subject and included a nationally representative survey and discussions in 60 locations across the UK, including a good few of your constituencies.

Although public confidence in the ability of successive Governments to manage the immigration system has been and still remains low, most people are balancers who see the pressures and gains of migration. Generally, most people want immigration to be controlled, they want migrants who come here to make a contribution and they want everybody to be treated fairly. However, control means different things to different people. It can be about UK sovereignty, controlling numbers, a selective immigration system and enforcement.

There are two further points in terms of public confidence. Immigration is a national issue that people see through a local lens, so what happens locally is quite important, and people’s understanding of immigration policy is very top line. They do not know the details of our policy, such as the detail of the EU settlement scheme.

Treating people fairly is hard-wired into most people. Most people want to see fair play and humanity. They want immigration to be controlled, but that has to be fair, and you do not win support by sounding nasty. In terms of the EU settlement scheme, nobody wants people who are here to be sent home. Towards the end of the National Conversation, when Windrush was an issue, people also talked about the unfairness of the Windrush scheme.

In terms of the Bill, the devil is in the detail and policy will be set through immigration rules, but areas to look at perhaps include people who have been awarded pre-settled status being automatically granted settled status, rather than having to apply again, and also thinking about citizenship. The public find it very reassuring when people make the UK their home and then take up British citizenship. That can sound a bit counterintuitive, but there is a preference for people becoming citizens, rather than having guest-worker schemes. On immigration policy, you could look at how one can make the acquisition of citizenship smoother and easier—by reviewing the cost of citizenship, for example.

[Holly Lynch]

Q More broadly, through your work at Policy Exchange and British Future, how have you seen public attitudes towards immigration change over the past 12 months? David, may I come to you first?

David Goodhart: As I just mentioned, it has certainly dropped down in terms of priority and level of anxiety, but pretty consistently over the past 20-odd years about two thirds of the public have said that immigration is either too high or much too high. That may have come down a little bit recently. It has certainly come down in terms of priority, partly because other things have been happening, even prior to covid. It is also because of a feeling that, with Brexit finally happening and the end of free movement from the European Union, we would be in control of it again, so a source of anxiety was removed.

Jill Rutter: To echo what David said, immigration has certainly dropped down of the list of issues of public concern. It is much less salient. Ipsos MORI has also tracked the same group of people over a five-year period, and has seen a slight warming of attitudes. That is evident in other polling data, too.

I think the reason for that is, first of all, as David said, that people feel that now we are leaving the European Union, the UK has control over immigration from the EU. But also the referendum itself enabled a much more open, public debate about immigration in pubs and among groups of friends. Inevitably, in that discussion, there is a kind of moderation of our attitudes. That is a reason, too. Again, there is a displacement effect: covid-19 has pushed immigration off the news agenda.

[Holly Lynch]

Q David, you have already touched on this a little bit. Some sectors will be impacted by the end of free movement harder than others. Some of those have also been thrust into the spotlight because of the coronavirus crisis. To what extent is the MAC really able to respond to some of those workforce issues? How much more dynamic would it need to be to respond to them quickly?

David Goodhart: One third of food manufacturing’s employees are from the EU. That went up from virtually nothing in 2004—it is extraordinary what has happened in food manufacturing. In hospitality the figure is about 20%. The NHS has some special exemptions, but overall its figure is about 5% or 6%—rather higher on doctors than on nurses in percentage terms. Hospitality will be in a peculiar state anyway because of covid-19, so perhaps that is not such a big issue.

Do not forget, these people are not disappearing; it is incremental as people leave over time. That will be interesting to see. It may be that covid-19 will prompt EU citizens to leave in larger numbers. I do not know, Jill, whether you know if there has been any research in the past few weeks on that. That could be a problem, I guess.

Assuming that that will not change things hugely, the whole point of ending free movement is that food manufacturers either invest more in automation or they have to make the jobs at the bottom end of the labour market more attractive to people who are already here, which does not seem to me to be a foolish goal. That means that they will have to pay the jobs better and make them more pleasant in some way. That is surely a good thing.

[Holly Lynch]

Q We have heard this morning from the MAC that it is the organisation tasked with assessing workforce shortages. That then feeds into our immigration strategy and not necessarily our domestic skills strategy. That is a problem that we need to think about how to reconcile.

David Goodhart: I don’t quite get that, sorry.

[Holly Lynch]

If the MAC, as an organisation, is assessing where we have workforce shortages, that only informs our immigration approach. It should also be informing our domestic skills strategy.

David Goodhart: Well, there are lots of organisations that are constantly looking at recruitment problems. There is a whole industry of it, as you know.

[Holly Lynch]

Q But do the same organisations shape Government policy in the way that the MAC would have the ability to do?

David Goodhart: We do not really have a skills policy in this country. Where do we spend most of our money on education and training, post school? On sending almost 50% of school leavers to three-year or four-year residential university courses, which they choose themselves, with absolutely no bearing on the needs of the economy or their own future employment needs. There is huge investment in the university sector; universities are private bodies that compete with each other. We do not have a national skills policy. We introduced the apprenticeship levy, but still less than 10% of school leavers go into apprenticeships—this is a different subject.

One of the potential upsides of the end of free movement is that it is going to help to concentrate our minds on getting better alignment of what we spend on education and training and what people and the economy need. Obviously, the covid-19 crisis will feed into that. I have been involved in some work at Policy Exchange on reviving the idea of the individual learning account and having a more ambitious version of it for people over the age of 21 who want to train or retrain in some area.

There is a very good case for suspending the apprenticeship levy and just having a much simpler system in which you have 50% of the apprenticeship paid for by the employer and 50% by the state, and extending it to much smaller employers, too. This is a slightly separate issue, I know.

[Holly Lynch]

Q Can I put the same question to Jill Rutter? What would need to change so that the MAC was really equipped to respond to these workforce issues?

Jill Rutter: I fully agree that skills policy and immigration policy need to be much more closely aligned. Whether the MAC is the best instrument to do it, given its current remit, I do not know. There are arguments for extending the MAC and bringing in other expertise. At the moment it is very labour market economist-focused—its remit has largely focused on labour market impacts. There are arguments for expanding the MAC.

I also think it is worth looking at the migration skills surcharge, which is a very blunt instrument. It applies to non-EU migrants; employers who bring in non-EU migrants have to pay a surcharge. The money just disappears into the Treasury, and I do not think it incentivises training at all, so that is something to look at as well.

[Stuart C. McDonald]

Q Can I ask a broad question? It will be a slightly controversial one in these surroundings. To what extent are changes in public attitudes to migration over the last 10 years related to politics and the media? Is it not quite striking that towards the middle of the last decade was when public concern about migration was at its highest, and that is probably when the political debate, if I can call it that, about migration was at its height? The tailing off in public concern also tallies with the fact that, since the referendum, migration has not been on the front page of every newspaper or at the forefront of political debate.

Jill Rutter: A whole load of factors influence public opinion. Our national media and political debates obviously have a hugely important impact, but so does what happens locally and your own personal contact with migrants. If you have friends who are migrants and refugees, you have another reference point to add to what is going on and what is being played out on the internet or on social media.

--- Later in debate ---

[Kevin Foster]

Q Northern Ireland as well.

Adrian Berry: Yes, of course, but there needs to be primary legislation in whatever format, in my view, and not statutory instruments using the affirmative procedure.

[Holly Lynch]

Q Bella Sankey, perhaps I can come to you first. Will you outline for us what your hopes for change are, in terms of detention, through this piece of legislation? Will you also comment on David Goodhart’s remarks that those who, for one reason or another, have not applied for pre-settled or settled status through the EU settlement scheme may find themselves in a very precarious immigration position, and could find themselves in detention? What are the implications for those people, and what might need to change?

Bella Sankey: Thanks very much, Ms Lynch. For some time now, Detention Action has been working with a coalition of civil society organisations, including the Bar Council, the Law Society, the Equality and Human Rights Commission, Stonewall and others, and with MPs across the divide—Conservative, Democratic Unionist Party, Labour, SNP and Liberal Democrat MPs—to build a consensus around the idea that there needs to be a strict statutory time limit on immigration detention.

Immigration detention is a peculiarity of our public policy, in that there is no time limit. Unlike the criminal justice system or the mental health system, you can currently be detained indefinitely for months or years, and redetained indefinitely for months or years, without any statutory time limit in place if you are subject to immigration control.

It is a sweeping power that was introduced in 1971, when a series of immigration Acts acted to limit immigration from Commonwealth countries with the explicit intention of trying to reduce black and brown migration to the UK. The system was set up then, and has not been properly amended or looked at by Parliament. From the 1970s right up until the 1990s, a handful of people were detained, but it is now the case that thousands and thousands of people are detained each year. At present, as we sit here, 12 people in immigration detention have been there for more than one year.

The system is arbitrary and cruel. There is a crisis of self-harm in the system. Every day, my caseworkers speak to people who have suicidal ideation as a result of the indefinite nature of their detention. That is what everyone who has experienced the system will tell you: it is the indefinite nature that creates psychological torture and uncertainty. That means that people begin to lose the will to go on and live. We are seeking to implement a time limit through this Bill.

[The Chair]

Order. Can I just say that this is a Public Bill Committee, not a Select Committee, so we have to be focused laser-like on the Bill? I remind witnesses and questioners of that very important point. We do not need any general discussion of the issues around it; we are just talking about the Bill.

[Holly Lynch]

Q Further to that, if people have not applied to the EU settlement scheme by the time it closes at the end of June next year, people will potentially be a situation where they could be in detention centre.

Bella Sankey: Absolutely, and even if there is a very small error rate and there is perfect communication in that system, which I think we can all accept given the scale of the challenge is going to be very unlikely, those people will be subject to indefinite detention under our system. The link with the Bill is that the Bill does not put in place any time limit at all for EEA nationals or anyone else.

[Holly Lynch]

Q Thank you very much.

Adrian Berry, you have already outlined some of your concerns about the sweeping Henry VIII powers in the Bill. Would it be fair to say that not only does that restrict the ability of Parliament to scrutinise further developments in immigration policy and immigration law, but that it provides a great degree of uncertainty for immigration lawyers, who are working with people in the system about what those future policies and approaches might look like?

Adrian Berry: Yes, that would be fair. What has happened—to give you an example—is that EU law has been domesticated and retained under the European Union (Withdrawal) Act 2018, and then there are clauses in the Bill that say that the law continues to apply, except in so far as it is inconsistent with immigration functions or immigration Acts. So you end up with law, which is good law in this country, but it may not apply if someone judges it to be inconsistent.

We look to the law to know what it means. We look for legal certainty and for good administration. In clause 5(5), and in paragraph 4(1) and 4(2) of schedule 1, you find the same legislative drafting technique used—retained EU law applies except in so far it is inconsistent with—and then a general statement—immigration Acts or an immigration function or regulations made. How is the ordinary person, never mind the legislator, to know whether the law is good or not in a particular area if you draft like that? You need to make better laws. Make it certain, and put on the face of the Bill those things that you think are going to be disapplied because they are inconsistent with immigration provisions. There must be a laundry list in the Home Office of these provisions and it would be better if they are expressed in the schedule to the Bill.

[Holly Lynch]

Q So the responsible thing for an Opposition to do would be to ask the Government to be explicit in putting all of those implications and those potential changes in the Bill?

Adrian Berry: Yes, because service users—us, the citizens—need to know what the law means. We are entitled to understand that. People who are affected by it need to know what it is. It is not good rule making to do it like this.

[Stuart C. McDonald]

Q Mr Berry, we have just heard some discussion about the possibility of citizens eligible for the settled status scheme not applying for it. For what reasons will people miss the deadline? Can you give us a flavour of why this might be a significant problem?

Adrian Berry: They might be leading disordered lives. They might have things happening in their lives that concentrate their minds elsewhere—family difficulties, work difficulties. They might be affected by coronavirus. They might have mental health impairments. They might be long-term sick. They might be old. They might be demented. There is a whole host of reasons that are part of the ordinary warp and weft of life why somebody might miss a deadline. Not everybody has my focus on the interests of the European Union (Withdrawal) Act and its implementing provisions. Ordinary people do not. There needs to be a benevolent regime that allows them to make late applications.

--- Later in debate ---

[Kevin Foster]

Q Just to be clear, I used the figure of 3.2 million in terms of decisions as well as the figure for applications. Coming on to the social security co-ordination parts of the Bill, do you have any thoughts on those? Are you concerned about the Government perhaps not being able to promptly implement any agreement that we might be able to reach with the European Union on those areas?

Luke Piper: I will defer to the points that Mr Berry made in his presentation previously on the issues of social security co-ordination. Our central concern is that at this stage much of the rights-based provisions of the withdrawal agreement, both under title II and title III, have been delegated away by the Bill and the previous European Union (Withdrawal Agreement) Act to various Ministers, and there is a lot of legislation and regulations that we have still to see to fully understand how those rights and obligations will be implemented.

[Holly Lynch]

Q Luke, your organisation and a number of your members have been clear that you would like some sort of physical proof of pre-settled or settled status. Can you explain to the Committee why that is?

Luke Piper: Yes. There are clear points as to why we feel physical documents will help people in their day-to-day lives. First, it is the No. 1 ask of our members and people that we speak to who are EU citizens in this country. They would like physical proof of their status to live here. It is something that unfortunately has not been followed through.

Indeed, the House of Lords European Union Committee made the point that there are real worries that those without physical proof will face similar problems to those faced by the Windrush generation; there is a risk that they will face discrimination because they do not have physical proof of their status. We also had concerns about the availability of an online status; there may be instances when the status is not available for IT reasons. Also, online systems can be hacked. There are real security risks.

Finally, we also have concerns about the newness of the digital-only scheme. It is essentially being tested on over 3 million people. A digital-only identity system like this has never existed before in the UK, and it is being rolled out for a massive cohort of people. We had rather hoped that there would be an opportunity to trial the scheme substantively before people were pushed into a digital-only set-up. Those are the key reasons why we desire a physical document.

[Holly Lynch]

Q Thank you. Your organisation asks for clarity about what people’s status and rights will be between the end of the transition period and the closing of the settlement scheme at the end of June. What are your members’ anxieties about that period?

Luke Piper: The Bill brings freedom of movement to an end at the end of this year, but it is not clear what legal status people will have between the end of the transition period, which is at the end of the year, and the end of June—the end of the grace period. There has been no clarity about, or understanding of, what legal rights people will have. We have simply been told that certain checks, such as on the right to work, will not be undertaken, but it is not clear to us or our members how people will be distinguished, both in practice and in law.

[Stuart C. McDonald]

Q Mr Piper, we have heard from the Home Office on the number of applications. We, like you, congratulate the Home Office on achieving significant reach. The problem, of course, is the number of people who will not apply in time. Are you able to give the Committee any indication of the scale of that problem, and who can we expect to be in that number?

Luke Piper: I caught the majority of the question, but let me repeat what I think you are asking: do we have an understanding of the number and type of people who will not apply on time? Is that correct?

--- Later in debate ---

[Kevin Foster]

Okay, we will leave it there. I think you have made the points that are needed.

[Holly Lynch]

Q On the same subject, perhaps you could explain what engagement The Children’s Society has had with local authorities about this. What problems are local authorities reporting to you that would be overcome if they had an ability to provide those names to Government, with some assurances that those children would be eligible?

Lucy Leon: At the moment, this is a significant burden on social workers. We welcome the guidance that has been issued, the funding that has been put in place, the prioritisation of this issue, and the fact that the Minister has taken time to write to council leads to ensure the issue is seen as a priority. However, we know—because we see it in our frontline services—that the information is not trickling down, and many social workers are unclear about what they are meant to be doing and how to help young people.

In the current pandemic, with helplines and embassies being closed and people being unable to travel, it has become even harder for social workers to support young people in locating the right paperwork to help them through this process. Social workers are also not always aware of who needs to apply, and some of the cases are very complex. Some children and young people are entitled to British citizenship, and the struggle to access legal advice and helplines at this time has made that very problematic for social workers. We see the proposal as not only taking the pressure off local authorities, but taking the stress off young people.

We see young people who have been incorrectly given pre-settled status, when they are entitled to settled status. We want to enable automatic settled status at this pivotal moment in young people’s lives, when they are planning their future, thinking about their education and thinking about pathways to work, so that they know that they can have indefinite leave to remain and can stay in this country, which is their only home. We are talking about children in care who would have had a history of abuse and neglect. It is imperative that, as corporate parents to those children, we give them as much stability as possible in the long run.

[Holly Lynch]

Q This would apply to children who have had a very difficult start in life. If they were granted settled status through the process, that would come with the electronic status that the Minister mentioned, and that applies to everybody else who goes through the system. If, in addition, there was physical proof, that would resolve the conundrum that the Minister has just presented you with. Would it be fair to say that? [Interruption.] Are you still with us? I am not sure how much of my question you got.

Lucy Leon: I didn’t at all. I’m sorry, Ms Lynch; you cut off.

[Holly Lynch]

No problem. The Minister had presented a conundrum, but we are saying that if those children—bearing in mind that they have had a very difficult start in life—were granted settled status in a declaratory system through the local authorities, and they had both digital confirmation of that and physical proof, it would resolve the problem that the Minister put to you.

Lucy Leon: Yes. We are very much in agreement. That is why we support the 3million recommendation on physical documents as well.

[Stuart C. McDonald]

Q Thank you for calling in, Lucy. You are proposing that the status of these kids is set out in law, but they should apply in order to get proof of that status. Is that right?

Lucy Leon: Yes, that is what we are suggesting.

--- Later in debate ---

[Kevin Foster]

They are historical pieces of legislation.

Alison Harvey: Yes, they have totally gone now.

[Holly Lynch]

Q We have heard evidence this afternoon from other witnesses regarding their concerns about some of the Henry VIII powers in the Bill. May I ask you to share your thoughts on those, and what they mean not only for parliamentary democracy, but for practitioners of law? Do you have concerns about them?

Alison Harvey: Very much the concerns that Mr Berry expressed about certainty. If it is said that provisions of retained EU law are not compatible with the Immigration Act, please can we have a list? Tell us what they are. You must know, Home Office, otherwise you are not going to be able to operate the system. As he said, we had the European Union (Withdrawal) Act 2018 and the European Union (Withdrawal Agreement) Act 2020, both of which essentially give us powers to save EU law. They also give us powers to knock out retained EU law bit by bit, so what is the point of the Bill at all, in substance terms?

I think the point must be, because immigration is a sensitive area and because it involves people, to give you the opportunity to put in place safeguards. I suppose the Bill goes beyond the European Union (Withdrawal) Act and the European Union (Withdrawal Agreement) Act in that it would allow you to build a new system. There are wider powers of delegated legislation. I think most of the repeals could have been done under those Acts. If you want to test that, you go back to March, when the Immigration, Nationality and Asylum (EU Exit) Regulations 2019 were passed. Look at some of the things that they do: “Let’s give all Gibraltarians a right to apply for British citizenship.” There are big chunky powers in those regulations that are not in the Bill.

The Bill is an opportunity to put some brakes in. What is astonishing is that the Bill looks almost the same as it did last time it appeared; yet last time we did not have a withdrawal agreement. All the wait and see markers that justified not putting something in primary legislation have gone. Similarly, although the Home Office delegated powers memorandum has got longer it has produced, for example, absolutely no more substance on why the powers on fees are needed. The Delegated Powers and Regulatory Reform Committee said that this is so unsubstantial you cannot even say it is a skeleton.

There really is no justification to explain why there possibly need to be those powers. It creates tremendous uncertainty. It certainly creates lots of opportunities for litigation; to go in and argue that, no, something is not incompatible. That does not seem to me helpful at all.

Ian Robinson: Alison has said everything that I could and more.

[Stuart C. McDonald]

Q Alison Harvey, may I first go back to the idea that Professor Ryan was speaking about earlier: the notion of persons of Northern Ireland? The reason that would be useful would be to explain who has certain rights, in terms of family immigration rules or protections against deportation, for example, without having to claim British citizenship or to identify as a British citizen under the Belfast agreement.

Alison Harvey: We have two groups. Proposed new section 3ZA to the Immigration Act is about the Irish in Britain, wherever born—all the Irish; anyone who holds an Irish passport—and it gives them protection wherever they enter the UK, so that if they come from Belfast and go for a weekend in Paris they have not lost all their rights just by spending a weekend in Paris, which technically in law at the moment they have.

The other group are the people of Northern Ireland, who are the people born on the soil of Northern Ireland. Those people, under the Belfast agreement, have the right to identify as British, Irish or both. The question is how you give effect to that right, because at the moment it is argued that you give effect to it by going through a renunciation process, which costs money and makes it very difficult for somebody to identify solely as Irish.

We have provided in the EU settlement scheme for the people of Northern Ireland—those who are born there—to be treated in the same way for family immigration purposes as EEA nationals. That is a fairly short-term right—not a short short-term right, but obviously one that is on the way out because we are leaving the EU and that advantage will disappear over time; it will not apply to new arrivals and it will not apply to the people of Northern Ireland who form subsequent relationships.

So we have said that we will make it not matter whether you are British or Irish, or both, because you will not be at a practical disadvantage. But what people would like to be able to do is identify as Irish without having to give up a British citizenship they never felt they held. That was a point made by Emma DeSouza in her litigation. That litigation ended because it was a case brought by her partner about his EU law rights. So although their arguments were about her ability to identify as Irish, that was not the crux of their case; their case was an EU case, so it died with the changes.

I have put forward in my paper a series of proposals as to how we could fairly simply amend the law to give effect to that aspiration, without in any way damaging the aspiration of those in Northern Ireland who say, “I in no way want to be treated any differently from anyone else anywhere else in the UK”. I think we can square that circle.