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

(Committee Debate: 8th sitting: House of Commons)
Debate between Holly Lynch and Stuart C McDonald
Thursday 18th June 2020

(3 months ago)

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Home Office
Stuart C McDonald Portrait Stuart C. McDonald - Hansard
18 Jun 2020, 2:51 p.m.

I beg to move, That the clause be read a Second time.

It is a pleasure to address new clause 46, this time with a cross-party hat on, rather than my usual SNP hat. I am grateful to the Chair of the Home Affairs Committee, the hon. Member for Kingston upon Hull North and others for co-ordinating on this new clause.

As Members will know, the European Union has in place a fairly mature—it is certainly not perfect, but it is long standing—system of deciding which member state should appropriately consider a claim for asylum. For example, if an unaccompanied child is found on one of the Greek islands seeking asylum and it is known that they have family members in another EU country, few of us here would argue against the notion that the child should be reunited with their family and the claim considered in that member state.

In January this year, Parliament passed section 37 of the European Union (Withdrawal Agreement) Act 2020, which regrettably abolished the previous requirement on the Government to seek to negotiate an alternative to replace the family reunion provisions in the EU’s Dublin regulation. At the time, the Government were full of assurances that this did not represent a downgrading of their ambitions and said that they would protect family reunion for unaccompanied children in the Brexit negotiations, but in its current form, the UK’s proposal to the EU rows back on those assurances and would leave hundreds of children stranded.

There are numerous problems with what the Government propose. Most fundamentally, the proposed text removes all mandatory requirements on the Government to facilitate family reunions and would make a child’s right to join their relatives entirely discretionary. The text also intentionally avoids providing rights to children. It does not provide for appeals and attempts to put these issues beyond the reach of UK courts. Other categories of vulnerable refugees, including accompanied children and adults, would lose access to family reunion altogether. A series of other key safeguards are removed, including strict deadlines for responses and the responsibility for gathering information being on the state rather than the child.

This issue is hugely important. Between 2009 and 2014, before mandatory provisions were introduced by Dublin III, family reunions to the UK were carried out at an average rate of 11 people annually. Between 2016 and 2018, after the mandatory provisions were introduced by Dublin III, family reunions to the UK were carried out at an average rate of 547 people annually. The Government were not straight with Parliament when they proposed clause 37 of the withdrawal Bill earlier this year, and I think they have behaved in a rather upsetting manner, if I can put it like that.

We now have a situation where there are unaccompanied child refugees and refugees more generally living in appalling conditions in Greece and France. Of course those countries are under an obligation to do more to support and assist them, but many of those kids have family here, and I cannot see how any reasonable person can argue against the logic, the sense and the simple compassionate idea that that child should be reunited with their family in this country and have their asylum claim decided here.

The Government should stop messing about, stop trying to water down their previous commitments and revert to the obligation that Parliament previously placed upon it, which is to negotiate a full and proper replacement of the Dublin regulations, including an obligation to allow children to be reunited with their families in the United Kingdom.

Holly Lynch Portrait Holly Lynch - Hansard
18 Jun 2020, 2:55 p.m.

It is a pleasure to follow the hon. Member for Cumbernauld, Kilsyth and Kirkintilloch East, the SNP spokesperson, who used his experience to make a very convincing contribution.

Labour will support new clause 46, which was tabled by the Chair of the Home Affairs Committee with the support of a number of its members, as well as the Chairs of the Joint Committee on Human Rights and the Housing, Communities and Local Government Committee.

As we have heard, as a member of the EU, the UK has participated in the Dublin III regulation, which has allowed people seeking asylum in Europe to be transferred to the UK on the basis of family unity and to have their asylum claims considered in the UK. The Dublin III mechanism generally affects a small number of children, but it has a transformative effect on their lives. It has become an increasingly important family reunion route, with more than 1,600 people having been reunited through it since the start of 2018.

However, this route will end once the transition period comes to an end on 31 December 2020. While the Government have committed to seeking an arrangement through the UK-EU negotiations that would maintain a family reunion element of the Dublin system for separated children, we would very much like assurances that the Government are firmly committed to this.

We are concerned that, unlike Dublin III, the current proposals would not be mandatory and would take us back to the days when child refugees were reunited with family only at the discretion of the national Government. That would require the transferred person to make an asylum claim and only secure family unity pending a decision on that claim. Labour, along with the Families Together coalition, supports new clause 46. We want to see a system that retains the family reunion route under the Dublin III regulation for all families.

This is Refugee Week, and family reunion has been a long-standing feature of the UK’s immigration system. The United Nations High Commissioner for Refugees has said that

“there is a direct link between family reunification, mental health and successful integration.”

By diminishing children’s chances of reaching their relatives legally, restrictive rules sadly only drive people to take more and more perilous alternatives, putting lives at risk and empowering people smugglers.

Labour joins Safe Passage, Amnesty International, the British Red Cross, Oxfam, the Refugee Council, the UNHCR and so many others who make up the Families Together coalition to urge the Government to prioritise family reunion, so that children, spouses and vulnerable adults can reunite with their family and close relatives, by maintaining safe and legal routes for people to come to the UK.

At a time when we are all feeling the effects of separation from our families due to the pandemic, the Government must recognise the need to protect all child refugees adequately and provide a legal and safe means for the reunification of families.

Break in Debate

Stuart C McDonald Portrait Stuart C. McDonald - Hansard
18 Jun 2020, 3:39 p.m.

I beg to move, That the clause be read a Second time.

It used to be that the Home Office enforced immigration rules by good old-fashioned intelligence-led investigation and action, but under political pressure and the influence of austerity, increasingly the Home Office has decided to rely on essentially outsourced immigration control, hoping that if they made life tougher for unauthorised migrants, they would leave of their own accord. This is of course the hostile environment, and it has been ramped extensively in the last two Immigration Acts, such that little landladies and landlords, as well as bank staff and Driver and Vehicle Licensing Agency workers, all have to work as immigration officers now. All sorts of Government Departments are tasked with helping the Home Office with its work by sharing information, which makes people wary of accessing public services.

When these measures were introduced, Opposition MPs warned that there would be all sorts of negative consequences and that errors would be made, meaning that people would be denied housing or would have their bank accounts closed when they should not have been. We warned that there was little to suggest that attempts at enforcing destitution and desperation would persuade people to leave, that its impact would lead to all sorts of injustices, and that it could actually make immigration enforcement harder, not easier, as undocumented migrants are forced into the hands of unscrupulous landlords and employers and made ever more difficult to trace.

Four and six years on from the relevant Immigration Acts, the Bill would see that same hostile environment impacting on many more people. We should not allow that to happen without first assessing whether the Government have achieved what they set out to achieve with the hostile environment measures, or whether the warnings from Opposition MPs have been proven correct. Has the hostile environment achieved anything, or has it caused relentless problems, as was forecast?

It appears that the Home Office cannot tell us what the impact of the hostile environment has been in contributing to its policy goals. As the National Audit Office said only yesterday, it is currently unable to assess whether these measures have had any meaningful impact on the likelihood that an individual will leave the UK voluntarily. In fact, the number of voluntary departures has reduced significantly since 2015—in 2015 there were an average of 1,200 such voluntary departures each month, and by 2019 that was down to 460.

That echoes previous findings by the chief inspector of borders and immigration in relation to the right to rent, which is probably the most dangerous of the hostile measures, in that it leaves private citizens with the job of doing immigration checks. He concluded that the scheme had yet to demonstrate its worth as a tool for encouraging immigration compliance, with the Home Office failing to co-ordinate, maximise or even measure effectively its use, while doing little to address stakeholder concerns.

I want to emphasise those concerns. Time and again, the Home Office has been warned about the discrimination in the housing market caused by the right to rent scheme. These warnings came from the Joint Council for the Welfare of Immigrants and from the Residential Landlords Association. It is not difficult to understand how this comes about. Let us imagine a close relative who happens to let properties. How easy would it be for them to assess immigration status? How easy would it be for them not to be influenced by the fact that if they made a mistake in that assessment they would face criminal prosecution, a fine and even imprisonment? It is blindingly obvious that there is a huge danger of discrimination. Repeated surveys and assessment by organisations such as JCWI and the Residential Landlords Association have shown that to be the case.

We now have a court case proceeding to the Supreme Court. Both in the High Court and in the Court of Appeal, the finding of fact was made that this scheme has in fact resulted in discrimination. The Home Office had success at the Court of Appeal stage, on the basis that on paper and in theory the scheme could be operated in a way that did not lead to discrimination, but that is not anything to celebrate. The scheme has been ruled lawful, but it has been found to operate in a discriminatory way.

This is a time when we really must have a thoughtful and comprehensive analysis of what has happened to immigration policy and the functioning of the hostile environment. That is exactly what Wendy Williams suggested in her Windrush lessons learned review, yet today we have been asked to extend the scope of that hostile environment without such a review taking place, and without any evidence being provided by the Home Office that the scheme is having an impact or contributing towards any of its policy goals.

Right to rent is the most scandalous of these problems, but it is causing all sorts of problems in other areas as well. For example, the independent chief inspector of borders and immigration found that something like 10% of the bank accounts that have been closed as part of the scheme related to people who had every right to be here. That is a huge number of people who have been caused problems by this way of doing things, and they are not only migrants; of course, several million UK citizens do not have a passport and therefore struggle sometimes to prove their right to access services and housing, and to go about their lawful business.

We need to know from the Minister what work is being done to assess the impact of the hostile environment. Rather than celebrating the finding that, in theory, the right to rent scheme could operate without discrimination, what work has been done to make sure that it operates without discrimination? If no such work has been done, or if it cannot be guaranteed that the scheme will operate without discrimination, when will it be repealed?

Holly Lynch Portrait Holly Lynch - Hansard
18 Jun 2020, 3:42 p.m.

I support new clause 55 and I would have supported new clause 47 had it been moved. Both new clauses seek to safeguard EEA and Swiss nationals from the reality of the Home Office’s hostile environment policy.

We have cited examples of potential problems relating to the hostile environment throughout the sittings of this Bill Committee, but the Windrush lessons learned review highlighted the structural flaws that permeate the hostile environment approach. Instead of increasing the effectiveness of the Home Office machine, that approach has instead led to the hounding of those unable to prove their status, while simultaneously disregarding the legitimacy of independent cases.

Throughout the sittings of this Committee, we have been at pains to articulate our concerns that unless the European Union settlement scheme is 100% successful, we will never be in a position to know whether it has been or not. People will suddenly find themselves subject to the hostile environment.

Of the Windrush generation, it has been said:

“Paulette Wilson was detained in an immigration removal centre and warned that she faced removal after living in the UK for 50 years. She spent decades contributing to the UK—working for a time in this very House—yet she was treated like a second-class citizen.

Junior Green had been in the UK for more than 60 years, raising children and grandchildren here, but after a holiday to Jamaica he was refused re-entry despite holding a passport confirming his right to be in the UK. The injustice he suffered was compounded when, because of this action, he missed his mother’s funeral.

Lives were ruined and families were torn apart.”—[Official Report, 19 March 2020; Vol. 673, c. 1154.]

Those words, setting out those examples, are an extract from the Home Secretary’s statement to the House on presenting the Williams review in March. Yet we are still waiting for the necessary structural reforms to be made at the Home Office to give us any confidence that those who missed the EUSS deadline, because of reasons that should be looked upon favourably, will not be refused by one of the same decision makers who made misguided judgment calls on Windrush cases in the pursuit of Home Office targets.

In trying to mitigate the impact of the Windrush scandal, the Government launched a number of initiatives to go into communities and undertake almost a tidying-up exercise, to ensure that people had the paperwork they needed to protect them from such encounters with the Home Office in future. The Commonwealth citizens taskforce and the vulnerable persons team have delivered that work in communities, but we know that comparable preventive initiatives seeking to support those most at risk of not applying to the EUSS on time have had to stop work, due to the coronavirus. I hope the Minister might be able to update us on how those activities will be super-charged to make up for lost time, once it is safe for them to continue.

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

(Committee Debate: 7th sitting: House of Commons)
Debate between Holly Lynch and Stuart C McDonald
Thursday 18th June 2020

(3 months ago)

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Home Office
Holly Lynch Portrait Holly Lynch - Hansard
18 Jun 2020, 11:37 a.m.

That is one of the best interventions I have taken during the course of this Committee, and it was a welcome addition.

The Royal Association of British Dairy Farmers has estimated that in the UK, 56% of dairy farmers have employed workers from the EU; 60%––around 22,800 EU migrants––make up the workforce in poultry farming. According to the NFU, the UK’s horticulture sector is completely reliant upon seasonal migrant workers to collect crop yields: 99% of all harvesters in the UK come from Europe. All these working relationships have been forged over time due largely to the flexibility granted by freedom of movement.

The British Poultry Council has warned that the new immigration plans are likely to have a crippling impact on UK food businesses. A report of the kind outlined in new clause 24 is therefore necessary to safeguard the UK’s agriculture industry, during a time of much upheaval. As both the National Farmers Union and National Farmers Union of Scotland have stressed, fruit and vegetable picking requires a high level of manual skills, and farms can only operate efficiently when they recruit workers with this skillset.

This is the one sector where we can say that we have just been through a trial for the ending of free movement, brought about by lockdown. Migrant labour dried up due to lockdown and the Government tried to recruit from the domestic labour force. Nowhere near the required numbers joined up, fruit and veg started to rot in the fields and we were forced to very quickly get migrant labour from Europe back in on chartered flights. It is vital that the Government learn from our experiences during the crisis and develop a proactive and pragmatic agricultural policy for implementation after the transition period. New clause 24 would give us the information required to do this.

Stuart C McDonald Portrait Stuart C. McDonald (Cumbernauld, Kilsyth and Kirkintilloch East) (SNP) - Hansard
18 Jun 2020, 11:42 a.m.

It is a pleasure to serve under your chairmanship again, Sir Edward. I can be relatively brief because the shadow Minister has spoken to the National Farmers Union of Scotland and represented its interests pretty well. There is real concern about shortages in the labour market for agriculture, particularly in relation to seasonal workers. Research on seasonal migrant labour from 2018 showed that in Scotland alone the number of seasonal agricultural workers required in any year is not far short of 10,000.

More recently, the NFUS and the UK farming unions have given evidence to the UK Government, demonstrating that for the whole UK around 70,000 seasonal staff are required in the horticultural sector and 13,000 seasonal staff are required in the poultry sector every year. That is obviously many times more than the number of places in the current pilot.

Challenges in recruiting seasonal workers have already been seen in recent years. In 2018, the NFUS conducted a survey of its horticultural membership in which every single respondent reported being “concerned” or “very concerned” about the impact worker shortages would have on their businesses in 2018 and beyond. Almost 60% of respondents said they were “likely” or “very likely” to downsize their business and the remaining 42% said they would have to cease current activity.

The NFUS was opposed to the end of free movement but, even while free movement was retained, farmers increasingly needed to look beyond the EU to fill such posts, with countries such as Ukraine, Russia, Belarus and Moldova already supplying a significant proportion of the workers required. The seasonal agricultural workers scheme pilot has been described as a step in the right direction, but it does not provide nearly enough permits if shortages such as those experienced in recent years are going to continue.

The NFUS is calling for a seasonal scheme that is open to both EU and non-EU workers, with capacity to provide farmers with access to returnee employers. It also calls for the scheme to be open to a wide number of labour providers and direct recruiters. Some concerns have been expressed about the expense and the somewhat laborious processes that are involved in taking advantage of the scheme.

The NFUS has also expressed concerns that the future immigration system proposed by the Government is not based on realistic expectations of the ability of the UK to fill the jobs currently carried out by migrant workers. It says that

“to maintain the productivity of the agricultural sector, immigration policy must allow recruitment on a seasonal basis for workers from both the EU and non-EU, at a non-restricted level.”

I echo what the shadow Minister, the hon. Member for Halifax, said about the SAWS scheme and how we always have to be cautious about the need to carefully protect workers against exploitation. She was right to highlight concerns raised by Focus on Labour Exploitation during the passage of the Bill last year.

To come to the rescue of the right hon. Member for Scarborough and Whitby, the gangmasters legislation was very welcome, but so too was the introduction of the director of labour market enforcement in 2016, under the Conservative Government, which may have been what he was thinking about. Those are both welcome moves, but we have a long way to go to build on the creation of those posts in ensuring that migrant workers—and workers generally—are properly protected.

One criticism of the new clause is that it is not just on seasonal workers that we need to have a report; we need a broader report on the impact on access to labour in the agricultural industry. The concerns of organisations such as the NFUS go further than seasonal work, and include the cost of sponsorship under tier 2, which it has described as

“prohibitively expensive in terms of both financial and administrative burden.”

It is fair to say that the NFUS has welcomed some of the recent developments, for example the decrease to the salary threshold that has been introduced by the Government, but it asks how non-salaried roles will fit into the points-based system; how the revised shortage occupation list will generally take account of the range of occupations that exist in agriculture; whether the Government will consider targeted routes for remote and rural areas—unfortunately, from what the Minister said the other day, it sounds as if it will be disappointed in that regard—and how the expense and bureaucracy of the system can be improved. It simply calls for close engagement as we move towards the implementation of the new system.

The new clause is sensible and will contribute to our understanding of what is going on in a future debate about labour in the agricultural sector.

Break in Debate

Holly Lynch Portrait Holly Lynch - Hansard
18 Jun 2020, 11:52 a.m.

I beg to move, That the clause be read a Second time.

We have been through a great deal of this subject matter earlier in the debate on clause 2. I was grateful to the Minister for some of the clarity he was able to provide at that stage. New clause 27, however, goes that little bit further and asks the Government to produce a report on the associated rights given to citizens in the common travel area.

The aim of this proposed change is to ensure that Ministers set out in detail the scope of what has been officially referred to as the reciprocal rights of the common travel area, and to compare and contrast them with the rights that can be retained under part two of the withdrawal agreement, as provided for domestically under the EU settlement scheme. The Minister’s predecessor stated that Irish citizens do not need to apply to the EU settlement scheme because of the CTA, but since then the Government have instead suggested that individuals whose immigration status is covered by the CTA may wish to register under the EU settlement scheme. Inevitably, this has caused a degree of confusion about possible gaps between where free movement rights finish and CTA rights start.

As highlighted by the Northern Ireland Human Rights Commission, the EU SS is enshrined in law through the withdrawal agreement. Comparatively, however, the CTA is upheld essentially by a gentlemen’s agreement, the non-legally binding memorandum of understanding between the UK and Ireland on the CTA of May 2019. A report on the associated rights of the CTA would therefore be incredibly helpful to ensure that Irish citizens can receive equal rights to EEA and Swiss nationals.

We also believe that the report on the associated rights granted through the CTA would provide scope to begin to answer the pertinent questions about clause 2 raised during the evidence given by our expert witnesses. As previously discussed, while we welcome the provisions set out in clause 2 for Irish citizens, there is still outstanding ambiguity regarding the status and legality of the associated rights that are prescribed by the common travel area.

We believe that it would be incredibly welcome if the Government were to take this opportunity to clarify any ambiguity before the Bill takes effect. A report would provide unequivocal guidance on the status of Northern Irish citizens who identify solely as Irish. It would hopefully guarantee the same provisions for deportation and exclusion as those for Northern Irish citizens who identify as British. It would also clarify issues raised by the Committee on the Administration of Justice on questions relating to cross-border provisions and the right to vote in referendums. More must also be done to tackle the current problematic loophole whereby someone with an Irish passport is not granted protections on arriving in the UK, because they have travelled from a country outside the common travel area. Professor Ryan illustrated the opacity surrounding the status of acquisition of British nationality for British-born children, children born to Irish parents and Irish citizens wanting to naturalise. He stressed that this is currently an unanswered question in British citizenship law.

Finally, the report could also lead to a more sustained debate on Alison Harvey’s proposal on the right to abode, which was raised during evidence. The right to abode would grant citizens a plethora of citizenship rights, while simultaneously safeguarding people’s right to identify solely as Irish. We hope the new clause will catalyse discussions on this issue that will lead to a definitive conclusion.

Stuart C McDonald Portrait Stuart C. McDonald - Hansard

I can be very brief. I echo and support what the shadow Minister has said. I am not going to repeat what I said on clause 2; that is a welcome clause, although we have one or two concerns about the detail. What this whole debate has shown us is that, even though we are told that the common travel area pre-existed the European Union and everything is fine, in actual fact it is hard to discern what precisely is involved in the CTA and precisely what rights it confers on individuals.

My understanding from the debate we had last week is essentially that the Government propose to progress this in a rather piecemeal way, changing bits and bobs of the legislation on different subjects to ensure that Irish citizens will continue to enjoy equivalent rights in this country. Okay, that will get us to where we want to be, but it does prohibit us from having a comprehensive overview of what progress has been made and what exactly we are trying to achieve by restoring the common travel area and making sure that there is not a loss of rights because of the loss of free movement.

The new clause would be genuinely be helpful for MPs to understand what the CTA is all about, what exactly the Government are trying to achieve and what progress they are making towards that. It is a genuinely helpful suggestion.

Break in Debate

Holly Lynch Portrait Holly Lynch - Hansard

I am grateful to the Minister for that response. At this stage, we will continue to follow the negotiations on the additional reciprocal arrangements, and on that note I beg to ask leave to withdraw new clause 29.

Clause, by leave, withdrawn.

New Clause 30

Procedures for amending 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 subsection (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.”—(Stuart C. McDonald.)

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.

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

Question negatived.

New Clause 32

Annual report on labour market

“Within 12 months of this Act coming into force, and every 12 months thereafter, the Secretary of State must lay a report before Parliament setting out how any changes made to the Immigration Rules for EEA and Swiss nationals have affected the extent to which UK employers have adequate access to labour.”—(Stuart C. McDonald.)

This new clause would mean the Secretary of State must lay a report before Parliament on how changes to Immigration Rules for EEA and Swiss nationals are affecting access to labour.

Brought up, and read the First time.

Stuart C McDonald Portrait Stuart C. McDonald - Hansard

I beg to move, that the clause be read a Second time.

I can be relatively brief, since we covered much of this territory in earlier discussions, but it is a useful opportunity to push the Minister on a few issues. What progress can he report on raising awareness of the new tier-2 procedures in which so many small and medium-sized enterprises will have to participate, and what support is being rolled out for those businesses to help them to navigate the new system? What change has he noticed in the number of applications for tier-2 sponsorship licences, and what work is under way to streamline the system, which we have spoken about at length previously?

I suspect the Minister’s answer to the new clause will be that there is to be an annual MAC report. If so, can we ask that it is laid before Parliament and then have a debate on it? The Home Affairs Committee spoke about an annual debate on migration in a repot two or three years ago in trying to build a consensus on migration. It looked at how other countries developed immigration policy, and one issue that featured heavily in other jurisdictions was, at the very least, an annual debate on immigration policy generally.

We are talking about seismic changes to the way in which many businesses will go about recruiting and accessing the labour market, and the number of industry bodies that have come to me to express concerns is unbelievable—industry bodies I did not even know existed until they got in touch—across food and drink, agriculture, tourism and hospitality, fishing, manufacturing, engineering, logistics, financial services, social care, education, and many more. There is significant apprehension, and it is not because any of these industries want to exploit low wages; it is their realistic assessment that they are struggling already to access the labour they need in the UK at a price they can afford and which keeps them competitive. Now they are going to struggle to access labour from abroad, because of immigration rules.

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

(Committee Debate: 6th sitting: House of Commons)
Debate between Holly Lynch and Stuart C McDonald
Tuesday 16th June 2020

(3 months ago)

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Home Office
Stuart C McDonald Portrait Stuart C. McDonald - Hansard
16 Jun 2020, 2:20 p.m.

This brings us to the hot topic of the immigration health surcharge. It is worth remembering that the health surcharge is a fairly new concept, as it was introduced in 2014. It is set at £400 per year for most applicants, with a discounted rate for students and tier 5 youth mobility workers. The Government have decided to increase the fee to £624 per person per year in October.

Those are hugely significant sums of money, as the charge has to be paid per person per year for the full duration of the visa being applied for, before that visa application has even been considered. Somebody who comes in under a typical five-year tier 2 visa will have to pay more than £3,000 up front in health charges. If they have a husband or wife and a couple of kids, that is three extra NHS surcharges, so more than £12,000 up front without even thinking about the visa fee. On a discounted rate, a student coming for three years will need to pay more than £1,400 up front. Again, that is completely separate from the visa fee. Of course, the Bill extends the scope of the immigration health surcharge to many more applicants.

A particular injustice is done to people applying for leave to remain based on long residence. They are individuals and families who are forced on to a dreadful treadmill of applications and expense. Repeatedly, they have to apply for 30 months’ leave to remain. A single parent with two kids applying under those rules would need to pay almost £4,700 in health charges, and more than £3,000 in immigration fees, for just 30 months. They have to make that same application over and over again until they get to 10 years. When they get to 10 years and are met with a settlement fee of £2,400 per person, they will already have paid £10,300 per person. For a family, £10,000 per person is impossible. Shamefully, those people are often prohibited from having access to public funds.

Those people are applying because of long residence in the UK so, realistically, in many cases, there is no other country that they can go to. The children have spent most, if not all, of their lives here. It can put families in intolerable situations where they have to choose which family member they can afford to pay the fee for. A child may end up missing out because the most immediate and pressing priority is to pay the fee for a breadwinner.

In a way, the charge represents the worst of Home Office policy making, although the Treasury is as much to blame for stripping the Home Office right down to the core and instructing it to use migrants as cash cows to fund its activities. It also illustrates the Home Office at its worst, because the policy is more about grabbing the headlines than anything else. It is illogical, unjust and counterproductive.

The excuse given is that the policy ensures that migrants contribute towards the cost of the NHS system that they may use—but in that case, why is there an NHS charge but not an education charge, especially for families with kids? Why is there not a public transport or roads charge, or a local services charge? It is essentially a fig leaf for the fact that it is simply a general tax.

It is also unjust in that it is a form of double taxation and it is a poll tax. Migrants, of course, contribute to public services through general taxation like everybody else, through income tax, council tax and indirect taxes. The NHS surcharge is totally regressive. It falls unfairly on different migrants, as a wealthy bank worker with no dependants will pay about a quarter of the sum that an NHS careworker will pay if he or she comes in with kids. Most importantly, it falls unfairly on migrants as opposed to those who are citizens or settled. Migrants pay a general tax that the rest of us do not, while at the same time paying all the other taxes that we do.

Finally, from a different perspective, this is a policy that makes the UK an eye-wateringly expensive place for people to come to work. That will now expand to EU and Swiss nationals, and to the small and medium-sized businesses that employ them. Just as businesses are struggling to keep their noses above water, the Government intend to whack them with a plethora of fees, vis-à-vis skills charges and the NHS surcharge.

As we heard last week, it is the big multinationals that are well practised in this system over time, and that have the know-how and resources. Small and medium-sized businesses will end up not only having to navigate the complex tier 2 system, but often meeting the cost of the immigration health surcharge. If a job pays around £26,000 or £27,000, nobody in their right mind is going to come if they have to pay almost half a year’s salary up front. The small hotel and the fish-processing factory will have to pay it on their behalf and, quite simply, they may well not be able to afford to do that. It will not just be one job that remains unfilled. The danger becomes that that hotel or factory simply cannot continue to function and it moves elsewhere. Workers will go where they are not being totally ripped off.

Can the Minister give me examples of other countries that operate such a system in relation to a health surcharge? If so, what is the comparable rate? All the comparisons that I have looked at show that the UK is charging people to come here at a rate that is several times that of most of our competitor countries. In short, this is unjust, it is counter-productive, it is a double poll tax and it should be axed altogether. We support the Labour amendment and new clause as far as they go, but our view is that the solution is total abolition, rather than trimming around the edges.

Holly Lynch Portrait Holly Lynch (Halifax) (Lab) - Hansard
16 Jun 2020, 2:26 p.m.

It is a pleasure to serve under your chairmanship once again, Mr Stringer. I rise to speak to new clause 42. I agree with a great deal of what my friend the hon. Member for Cumbernauld, Kilsyth and Kirkintilloch East said about the immigration health surcharge.

The Labour party is undertaking a significant piece of work with colleagues in the health team about the subject, so we will not make any further comments at this stage about new clause 12. We tabled new clause 42 and we welcome the Government’s commitment to scrap the NHS surcharge for migrant health and care workers, which we feel is long overdue.

The pandemic has shown the enormous contribution of overseas workers to our health and care system. They have put their lives on the line every day to keep us safe. It has been an insult and injustice to then ask them to pay extra for the very services they help provide. The Government acknowledged it was wrong, and said they would be scrapping the fee, which was described as “appalling, immoral and monstrous” by Lord Patten, the former Conservative party chairman, on 21 May, but details have yet to be published about exactly how and when it will happen.

I am mindful that the commitment made by the Prime Minister, following the exchanges between our party leaders at the Dispatch Box, was broader than the new clause before us due to the scope of the Bill. The U-turn was made when a No. 10 Downing Street spokesman announced:

“The PM has asked the Home Office and the Department for Health and Social Care to remove NHS and care workers from the NHS surcharge as soon as possible. Work by officials is now underway on how to implement the change and full details will be announced in the coming days.”

We share the opinion of Donna Kinnair, general secretary of the Royal College of Nursing, who said it was

“a shame it took this pandemic for the government to see sense”.

We also share the opinion of the British Medical Association, the Royal College of Nursing, the Royal College of Physicians and Unison, which have written to the Prime Minister to demand clarity about his commitment. I hope that the Minister can update the Committee and, indeed, the general public on what progress the Government have made. Can he confirm that all health and care workers will be exempt from the charge on a permanent basis, including those employed in the NHS, independent settings and the social care sector; that the spouses and dependants of health and care workers will also be exempt from the charge; and that health and care staff, who have paid the charge in advance, which will be all those currently working in the NHS and social care, bearing the brunt of the pandemic, will be appropriately reimbursed?

New clause 42 intends to hold the Government to the commitments made following PMQs on 20 May. As you can imagine, Mr Stringer, international doctors and nurses, who have just had to endure the most difficult, traumatising period of their careers, were hugely relieved when the Government made the overdue decision to scrap this unfair charge for health and care workers, finally recognising the vital contribution that overseas staff make to the NHS. However, we are nearly a month on since the announcement was made and we are still awaiting the details that we were promised.

Break in Debate

Stuart C McDonald Portrait Stuart C. McDonald - Hansard
16 Jun 2020, 3:12 p.m.

I beg to move, That the clause be read a Second time.

The Bill, in combination with others that have gone before, removes from some people the right to be in this country, and requires them to apply for rights under the EU settlement scheme. As hon. Members know, I object to that approach, but I acknowledge that, for the vast majority of people, it will thankfully be a fairly straightforward matter and there will be no need for legal advice. As we have seen, the scheme has reached a good number of people so far. We have also seen that these issues can be complicated. It can be complicated for someone to know whether they are required to apply or whether they have the right to be here as a UK citizen or through some form of migration status. For some, proving the right to be here in order to get settled status can be tricky, and advice will be needed on the type of evidence required or whether, for example, an old criminal conviction brings a risk in applying.

In Scotland, some will be able to get advice and assistance funding from the Scottish Legal Aid Board in order to seek some support on these issues, subject to a means test, but it is not the same in England and Wales. We have to learn the lessons of history: restrictions on access to legal aid were a contributing factor to the Windrush scandal. In itself, it would not cost much money to allow some basic legal advice to be handed out to those who need it. I very much hope the Government will consider this proposal seriously and put right the absence of legal aid.

Holly Lynch Portrait Holly Lynch - Hansard
16 Jun 2020, 3:13 p.m.

We very much support the right to access to justice for all, and legal aid is an essential component of that, so we support new clause 14. Cuts to legal aid have been disastrous for access to justice. Time and time again, we have seen that it is the most vulnerable who suffer. Huge swathes of areas of law were deemed out of scope by the Legal Aid, Sentencing and Punishment of Offenders Act 2012. Most evidence now suggests that there have been few or no cost savings to the Ministry of Justice from taking those areas of law out of scope, especially in relation to early advice.

When those representing themselves try to navigate complex areas of law without representation, cases are often longer and precarious, and thus more costly to the taxpayer. Indeed, the Williams review found that the withdrawal of legal aid contributed significantly to the problems faced by the Windrush victims. We do not want anyone else to be in a similar position when free movement comes to an end. We therefore support new clause 14.

Break in Debate

Stuart C McDonald Portrait Stuart C. McDonald - Hansard
17 Jun 2020, 12:03 a.m.

I beg to move, That the clause be read a Second time.

Illegal work was made a crime in its own right in the Immigration Act 2016. Lots of groups and MPs raised concerns at the time about the negative implications that would have, compared with any benefit it might bring. I think it is important always to revisit changes that this Parliament makes and to push the Government to explain what impact they really had.

I look forward to hearing from the Minister about the impact of that legislation. How many prosecutions have there been? What were the results of those prosecutions? What sorts of sentences were handed down? When the Government or law enforcement took that approach—the other side of the coin—what action was taken against those employers who were found to be employing people illegally?

As the Minister will be aware, at the time that legislation was introduced, all sorts of concerns were raised about the fact that it would strengthen the hand of exploitative employers, who would be able to have greater control over undocumented workers, essentially by having the knowledge that these individuals were committing a crime by undertaking that work and making it much less likely that they would even consider, never mind actually report to the authorities, the abuse and exploitation that they were suffering.

The offence applies to any migrant found to be working while they do not have valid legal status granting them leave to be in the UK, or when visa conditions ban them from working, such as in the case of asylum seekers, or if they work hours beyond those permitted by their visa, as may be the case for students. The penalty includes a maximum custodial sentence of six months and a fine at the statutory maximum. It also allows any wages paid to an illegal worker to be seized as the proceeds of crime.

The concerns raised in 2016 were that undocumented migrants in the UK forbidden from working illegally are forced to rely on illegal work, on charity and on the support of friends or family members, which can lead to situations of abuse and dependency, as well as instances of survival sex, for example, and destitution, homelessness and starvation. Often, agents who find work for undocumented migrants also run overcrowded, slum-like accommodation for the workers, keeping them isolated and cheaply accommodated.

Undocumented migrants who find work despite the prohibition are forced to look for work among some of the most unscrupulous and exploitative of employers. They are often underpaid or unpaid, forced to work extremely long hours, denied all workplace health and safety protections and threatened with being reported if they complain. As much of the work can be carried out cash in hand, the state sees none of the tax benefit either.

There are huge concerns here about modern slavery. I am grateful to the Catholic Bishops’ Conference on migration for its briefing, which states:

“Those perpetrating the horrors of modern slavery will seek every chance to take advantage of new migration policies. The government has a responsibility to ensure that proper safeguards are in place… the fear of prosecution currently deters people from escaping abusive employment practices or presenting themselves to the police. One particularly important step towards protecting people from exploitation would therefore be to repeal the offence of illegal working, so that no victim is at risk of being punished.”

Will the Government explain how this measure has helped in any way with what they want to achieve, and what steps they have taken to assess all the negative implications that we have been warning about and to militate against them?

Holly Lynch Portrait Holly Lynch - Hansard
16 Jun 2020, 3:22 p.m.

We have one or two unanswered questions on how the new clause would work in practice. We want to ensure that we have done all our due diligence before lending it our support. We may well come back to this on Report.

The new clause gives us the opportunity to say to the Minister that we are incredibly concerned that there are people who, when free movement ends—innocent, ordinary, decent, hard-working people—for the whole raft of reasons that we have already been through in the Committee, may find that they have missed the deadline. They have then not only got a precarious migration status, but could, if they continue to wait, find themselves in the criminal justice system and criminalised. We need to address the issue now.

One example that we have mentioned is that which the BMA raised with me. Its doctors, on the frontline of fighting coronavirus, will potentially leave applying to the EU settlement scheme to the last minute for that reason. If they continue to work as a doctor, would they be criminalised if they had not done their due diligence in making sure they have their applications in, but were continuing to work in our NHS? Will the Minister reassure us that nobody will be criminalised and in our criminal justice system who absolutely does not belong there when free movement comes to an end at the end of this year?

Break in Debate

Holly Lynch Portrait Holly Lynch - Hansard
16 Jun 2020, 4:31 p.m.

I beg to move, That the clause be read a Second time.

I rise to speak in support of new clause 22, tabled in the name of the shadow Home Secretary, myself and my Committee colleagues. The new clause would exempt NHS employers from having to pay the immigration skills charge.

As I have already stressed in my attempts to win support for other new clauses, the NHS workforce has historically relied on the support of professionals from across the world coming to the UK. In recent decades, that has included a supply of EU nationals. Nearly 10% of doctors, 8% of social care staff and 6% of nurses working in the UK are from EEA countries.

As things stand, NHS trusts pay the skills charge for those coming to work in the NHS from countries outside the EU and will be expected to pay those costs for those coming from EU countries after free movement ends. The immigration skills charge is effectively a skills tax paid by employers who have recruited from overseas instead of from the domestic workforce, to act as a disincentive and to promote recruitment from a local talent pool. That is fair enough, but in the context of the NHS, levelling the tax on NHS trusts is nothing short of an outrage.

If trusts cannot find clinical specialists here in the UK, they have no choice but to find them from overseas. The UK has a number of clinical skills shortages in many specialist areas and, in the absence of any Government strategy to respond to that domestically, the NHS has to hire from overseas.

We have already heard a lot about Brian Bell’s contribution to the evidence session last week. He gave the example of the nurse shortage. He said:

“often the shortage occupation list identifies a failure of the British education system to provide the people who are needed. A classic example of that is nurses. Nurses have been on the shortage occupation list since I can remember ever hearing of it. Every time they are put on the list, we hear statements along the lines of, ‘Yes, we know that they are in shortage, and we have a plan to increase the number of nurses who go through training so that we deal with the shortage in the long run.’ They are still on the shortage occupation list. We should be using the shortage occupation list to signal both to Government and to employers that there are training needs that need to be fulfilled.”––[Official Report, Immigration and Social Security Co-ordination (EU Withdrawal) Public Bill Committee, 9 June 2020; c. 24, Q49.]

An NHS trust cannot unilaterally decide to train more nurses from the domestic labour force if it is struggling to recruit; it needs Government intervention to deliver the uplift.

In the MAC’s 2019 full review of the shortage occupation list, where all doctors were added to the list, under section 4B on health occupations, the review was keen to stress that

“the rise in vacancies and concern over lack of staff has occurred under freedom of movement and during a period when many health occupations have been on the SOL. Ultimately it will take more effective workforce planning and efforts to increase the flows into health professions (and decrease flows out) to meet growing demands.”

That is a worrying thought.

We have clinical workforce shortages almost across the board in the NHS, and that has been while we have had free movement. Adopting new clause 22 would be just one small step towards protecting the NHS from the inevitable impact of free movement coming to an end with the Bill.

As constituency MPs, we all have casework relating to patients with rare medical conditions who have been on waiting lists for years to see a specialist, because there may be only one or two doctors specialising in that condition in the country. There may be only a handful in the world, so trusts are regularly looking to recruit from overseas because they seem to have no choice. The immigration skills charge punishes trusts for doing so, with the Government taking back much-needed cash from budgets in order to pay the fees. It seems grossly unfair and counterproductive, and it takes money out of frontline hospital services.

The Labour party has submitted freedom of information requests to 224 NHS hospital trusts in England, asking how much of the charges they are paying back to the Government. So far, only 45 have responded—around 21% of the trusts. To give an indication of what some hospitals are paying out, I should say that Lewisham and Greenwich NHS Trust had to pay the Government £961,000 in immigration skills charges over the past three financial years. Portsmouth Hospitals NHS Trust tells us that it paid out more than that in the 2019-20 financial year alone, with a bill for £972,000 in just 12 months; it has paid over £2 million in immigration skills charges since 2017. The Royal Free London NHS Foundation Trust has paid over £1 million in the same timeframe, and the University Hospital Southampton NHS Foundation Trust has paid £1,224,509 since 2017.

From the 21% of trusts that have responded to our FOI request, we know that nearly £13 million has been taken out of the NHS and handed back to the Government since 2017—nearly £13 million from just 21% of hospital trusts in England. That some hospitals can pay out nearly £1 million in immigration skills charges in a single year surely has to be a sign that the system is not working as intended. To repeat the point made by the MAC, this is all while people have been able to come under free movement, where fees would not have been applicable. That is about to come to an end. I urge the Minister to adopt new clause 22 to mitigate any further detrimental impact on the NHS workforce and to ensure that NHS funding stays in the NHS.

Stuart C McDonald Portrait Stuart C. McDonald - Hansard
16 Jun 2020, 4:30 p.m.

In a sense, this debate echoes the one we had on the immigration health surcharge. I support everything that the shadow Minister has said, but I would push the Labour party to go a bit further and scrap the whole scheme.

I have nothing against the principle that employers should pay a contribution towards the cost of training and developing the skills on which businesses rely, but why should it apply only to those who recruit from abroad? That is not in any way a proxy for determining which businesses, companies and employers are not doing enough training in their own right. In fact, very often the opposite is the case: many of the businesses, companies and employers who recruit from overseas are also the ones who invest considerable sums of money in training and upskilling their workers.

However, skill shortages often arise at very short notice. For all the workforce planning that they do, and for all the training that they invest in, employers regularly have a need to recruit from abroad. As I say, it is a very poor proxy for trying to target companies that are not properly investing in training. The whole thing needs rethinking.

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

(Committee Debate: 5th sitting: House of Commons)
Debate between Holly Lynch and Stuart C McDonald
Tuesday 16th June 2020

(3 months ago)

Public Bill Committees
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Home Office
Stuart C McDonald Portrait Stuart C. McDonald - Hansard
16 Jun 2020, 11:10 a.m.

Not really. People still have every incentive to apply for the scheme. On 1 July next year the deadline will have passed. People might put it off for six months, but I would far rather that than subject tens and probably hundreds of thousands of people to not having any rights at all. It is much the lesser of two evils. As I say, there are different ways in which we can do this. New clause 11 would allow people to apply after the deadline. I will turn to that in a moment. I want to set out exactly what new clauses 10 and 11 are designed to do.

New clause 10 would ensure that the EU settlement scheme was not closed to new applications until Parliament had approved its closure. We want to see what the plans are and scrutinise how the situation will be handled. Until we are satisfied, we will keep extending the scheme in order to protect people from the loss of their rights and from the hostile environment and the threat of removal. Why on earth should MPs give the Home Office a blank cheque to deal with this as it pleases? We will have that debate and the right hon. Member for Scarborough and Whitby can make his point that it will lead to a delay in people making applications, but I am firmly of the view that that is much the lesser of two evils.

On the closure of the settlement scheme, people who have not applied for a status will have no legal basis to remain in the UK after the grace period, no matter how long they have lived in the UK. They will be liable to removal and will face the hostile environment. After the grace period, a huge group of people will still not have applied. No similar scheme has ever reached 100% of its target audience. New clause 11 would bring back control of the situation to Parliament and allow us to be fully informed as to where the settlement scheme has got and what the Government’s plans are for dealing with this huge issue before we sign off on closure of the scheme. It is a modest proposal, but hugely important.

New clause 11 would ensure that late applications to the EU settlement scheme would still be considered unless reasons of public policy, public security or public health apply. In tabling the new clause, we are asking the Minister who he thinks does not deserve a second chance after 30 June next year. Who does not deserve the reasonable response that he has spoken about in the past? Under the new clause, applications made after the deadline could be ignored for restricted reasons relating to public policy, public security or public health. However, we want to know who, on top of that, the Minister thinks should be deprived of their rights and the ability to remedy the situation in which they find themselves. People will be unable to live in this country and they will be liable to removal. We need to know much more about the grounds on which people will be able to make a late application. What are the reasonable grounds that the Home Office will accept? They have yet to be defined. As far as we can tell, they will comprise only a very narrow list of exemptions, including, for example, for those with a physical or mental incapacity, and for children whose parents have failed to apply on their behalf.

As I have said many times, the deadline will be missed by many people for good reasons beyond those that I have just outlined. People will simply not be aware of the need to apply, and people with pre-settled status might forget to reapply for full settled status. I have set out a million times why people will not understand that the settlement scheme applies to them. Rules on nationality and immigration status in this country are hugely complicated. There will undoubtedly be people from all walks of life who think that they are British citizens and who already have a right of residence in this country. They will not appreciate that, in fact, they need to apply to the scheme. The consequences of making such a mistake can be dreadful. If we simply leave the Bill as it is, people will lose the right to be in this country and will be removed and subject to the hostile environment. Alternatively, we could at least leave open to them the option of being able to apply to the scheme after the deadline has passed. They would still have every incentive to apply, because they would need to evidence the rights that they access through the settled status process.

I ask the Government to look positively on these new clauses, and at the very least to provide much more information and assurance about how they are going to approach this issue. Up to this point, there has been barely a flicker of recognition that this is something that needs to be addressed, but we are talking about tens, possibly hundreds, of thousands of people being left in an appalling situation.

Holly Lynch Portrait Holly Lynch - Hansard
16 Jun 2020, 11:15 a.m.

I believe that it is appropriate to speak to new clause 25 as part of this grouping. The hon. Member for Cumbernauld, Kilsyth and Kirkintilloch East has already explained his commitment to and passion for new clauses 10 and 11. Our new clause 25 is not dissimilar to new clause 9. New clause 25 is tabled in the name of my hon. Friend the Member for Torfaen (Nick Thomas-Symonds), who is the shadow Home Secretary, and myself and my hon. Friends.

New clause 25 focuses on the need to put to bed some of the anxieties of those who will not have had their status confirmed by the time the transition period ends at the end of this year. When free movement ends, eligible EEA and Swiss nationals will still have until the end of the grace period to apply for status through the EU settlement scheme, which does not close until the end June 2021. With this in mind, all the conversations we have had with those European citizens who have either applied or are planning on applying to the settlement scheme have centred on what their status will be between the end of free movement and their status being granted, which could happen up until the end of June 2021 and, in some cases, beyond that.

The new clause asks the Government to put together a report on the status and rights of people during that window and to lay it before both Houses for consideration. We are calling on the Government to recognise the genuine sense of vulnerability felt by people who may fall into that category and to provide some assurance, in a report to Parliament, guaranteeing that those people, who are eligible, will have a lawful status and not be disadvantaged during those six months.

I asked Luke Piper, immigration lawyer and head of policy at the3million, about this issue in last week’s evidence session. It is a top priority for him and his group. He told the Committee:

“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.”––[Official Report, Immigration and Social Security Co-ordination (EU Withdrawal) Public Bill Committee, 9 June 2020; c. 61, Q125.]

EU citizens in the UK have already endured a lot of uncertainty about their futures and are now also facing insecurity on their lawful status. The suggestion that employers or landlords should not be checking to confirm their personal status during this grace period seems to be an approach fraught with potential problems. I am keen to hear what engagement Ministers have with employers and landlords on this issue, and how any suspension of the hostile environment will be managed. Last December, the3million commissioned a survey on EU citizens’ experience of the settlement scheme. It was the largest survey of its kind and indicated that they are already facing barriers, with 10.9% of respondents saying they have already been asked for proof of settled status, even though it is not yet a requirement.

Although this new clause focuses on the rights of those who apply after the transition ends and who get their status before the EUSS deadline, there will presumably then be a group of particularly vulnerable people who apply before the deadline ends but who do not get their status until after the end of June 2021. What happens, for example, if they apply on 20 June 2021, which is before the deadline, but do not get confirmation of their status until 20 July, which is after the end the transition period and the closure of the EUSS? What are the rights and status of that cohort of people?

Although the numbers coming through are good, we know that lots of people are still yet to apply. As we have heard, we will never know exactly how many people are in that category. We will never know whether there is going to be a surge towards the end of the scheme, which will make this a bigger problem than many of us would like. When asked about the numbers and types of people who will struggle to apply on time, Luke Piper said:

“Much as with the number of people due to apply for the scheme, we do not know. We have no idea of the exact number of EU citizens who need to apply under the EU settlement scheme, so we will not have an understanding of the number of people who miss the deadline.”––[Official Report, Immigration and Social Security Co-ordination (EU Withdrawal) Public Bill Committee, 9 June 2020; c. 62, Q126.]

Coronavirus has resulted in dedicated Home Office phone lines being closed, an inability to receive hard copies of documentation and specialist support services being stopped, impacting on the progress being made. The BMA has said that some doctors working tirelessly on the frontline may be in that cohort of people who have to leave things until next year, simply because they will be working flat out for the foreseeable future. After the transition period comes to an end, thousands of people might not have confirmation of their status.

Recent research by the3million on young Europeans living in London made some concerning findings. The focus group was the first time that some participants had heard about the EU settlement scheme, and a majority had not applied to it, despite being viewed as an easy to reach group because of their education and digital literacy. The new clause’s proposed report on that group’s rights between the end of the transition period and the EU exit deadline would be of great assistance in clarifying the status and rights of those harder-to-reach groups. It would also assist in getting them to submit their applications towards the end of the scheme.

It is important to note that, after the deadline, the EU settlement scheme will not close in practice, because people with pre-settled status will need to apply for settled status, and it will also be used by people will be joining family members in the UK after the deadline. Moreover, we will still be processing those applications that arrive on time but that will have to wait until the other side of the deadline for a decision to be issued.

Inevitably, the problem is the hostile environment and the long, dark shadow of the Windrush scandal. The fear brought about by the absence of a clear framework of rights and migration status for EEA and Swiss nationals between September 2020 and June 2021 is all too real. We therefore ask the Government to provide clarity on the rights of EU nationals in the UK during the grace period. EU citizens who have contributed and given so much to our society and country deserve to have security and confidence in their status.

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

(Committee Debate: 3rd sitting: House of Commons)
Debate between Holly Lynch and Stuart C McDonald
Thursday 11th June 2020

(3 months, 1 week ago)

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Home Office
Holly Lynch Portrait Holly Lynch (Halifax) (Lab) - Hansard
11 Jun 2020, 11:35 a.m.

It is a pleasure to serve under your chairmanship, Sir Edward, as we start line-by-line scrutiny of this particularly important legislation in these highly unusual times.

I thank the Minister for his opening speech on clause 1 and schedule 1. Early in proceedings, I want to put on the record my thanks to the Clerk of the Bill Committee. He has been absolutely invaluable to all Committee members with assistance on the amendments and new clauses before us.

I also want to put on the record—I am sure that the Minister will join me, in the spirit of some early unity, as might you, Sir Edward—an expression of our disappointment about the audio arrangements for Tuesday’s evidence session. The poor sound quality was problematic not only on the day, as on occasion exchanges between Members and witnesses were seriously restricted, but for Hansard during the afternoon sitting. Colleagues worked incredibly hard to make that Hansard report available, but, unfortunately, it was not published until after 11 o’clock last night. That made preparations for today’s line-by-line scrutiny based on that evidence incredibly difficult.

That said, I turn to clause 1 and schedule 1. As the Minister is aware, we voted against the Bill on Second Reading, and the clause is the Bill in a nutshell. We will go on to discuss in great detail the various clauses and to outline our reservations at the different stages, but, ultimately, we fear that the Bill—right now, and in this form—holds none of the answers to the problems facing the country and actually stands to exacerbate them.

It is not difficult to see how implementation of the Bill could have severe consequences for the health and social care sector, a point made by several of the witnesses on Tuesday. The sector will require special consideration. The policy statement published in February on what comes after clause 1 specifically comes into effect simply saying to those earning less than £25,600:

“We will…end free movement and not implement a route for lower-skilled workers.”

Many of the people on the frontline fighting the coronavirus earn less than that. We need them now, and we need them to recover. The policy paper and the Minister state that they are looking to the domestic workforce to plug those gaps, but on Tuesday we heard from the Migration Advisory Committee—we can all see and feel this—that systemic failures underpin the problems in social care, and those will not be resolved by January. If we put a hard stop on free movement without having resolved some of those issues, there will be consequences when the country can least afford that.

Concerns about the clause fall into two distinct groups: ensuring that we have done the right thing by the some 3.5 million EU citizens who are already here under free movement rules when those come to an end, and certain groups in particular, and looking ahead to the future impact of restricted migration flows. Since the Bill’s predecessor was presented to the House in the 2017 to 2019 Parliament, the EU settlement scheme has come into effect to give European citizens who reside in the UK a pre-settled and a settled status.

The numbers coming through the scheme are positive, but there are concerns about certain groups, some with specific vulnerabilities. Eligible children in care, for example, are one cohort that we will return to under the new clauses. The impact of coronavirus on Home Office capabilities alone, in addition to its impact on applicants, inevitably has heightened our concerns that some groups will need more support than ever to access the scheme.

Turning to the impact that ending free movement will have on migration flows in key sectors, the Bill provides more questions than answers. It is incredibly narrow in scope, as we have discussed, which is extraordinary given that it will create the biggest change to our immigration system in decades. Instead of putting forward a new immigration system, which Parliament could discuss, debate, amend and improve, the Bill grants powers to Ministers to introduce whatever system they like with extensive Henry VIII powers.

The Government’s February 2020 policy statement indicated what such a system might be like. Properly debating most of that new system will be deemed out of scope for this Bill and this Committee, but we will do what we can within scope to set out principles and solutions for when clause 1 comes into effect.

A number of the witnesses on Tuesday were critical of the Government’s planned £25,600 threshold—not just on health and social care—and transitioning on to a visa system and sponsorship routes will cause headaches and shortages for a range of businesses, exacerbating economic uncertainty. For example, the Bill fails to address the UK’s need for migrant workers to allow the agriculture sector simply to function, which is another issue that we will explore when we debate the new clauses.

To be clear, Labour has no problem with an immigration system that treats all migrants the same, no matter where they come from, but that is not the system the Government propose. A points-based immigration system could be effective. However, it would be predicated on receptive analysis of occupation shortages, parallel education and skills strategies that seek to fill long-term job gaps with domestic talent, and a pragmatic yet empathetic Border Force. The Bill fails to do any of that, and we will seek to remedy this, within the bounds of its scope, through our amendments and new clauses.

Stuart C McDonald Portrait Stuart C. McDonald (Cumbernauld, Kilsyth and Kirkintilloch East) (SNP) - Hansard
11 Jun 2020, 11:43 a.m.

It is a pleasure to serve under your chairmanship, Sir Edward, albeit at a longer distance than we are accustomed to. I thank the Clerks for dealing with what were probably some horrendously drafted amendments by the bucketful during the last couple of weeks.

I am pleased to have the opportunity to take part in our detailed line-by-line scrutiny of the Bill. It will be with a sense of déjà vu that I am sure the hon. Member for Stretford and Urmston also feels, having sat in the same Public Bill Committee this time last year. The real shame is that, this time last year, nobody listened to a thing that we said, and this Bill is in the same form as it was back then. Looking around the room, however, I see a much more discerning Committee this year, so I am filled with optimism that we may indeed be able to deliver some change.

We have serious concerns; we do not just make things up. As Opposition MPs, we have lots of concerns that stakeholders have raised with us. My preliminary point is that the two previous Immigration Acts that passed all the way through Parliament, in 2014 and 2016, contributed in a very serious and significant way to the Windrush scandal. In her review of what happened, Wendy Williams highlighted all the warnings that came from the same stakeholders about the problems that those Bills would cause. Indeed, she quoted from some of the contributions made by Opposition Members during the passage of the Bills. Hon. Members might not agree with everything we say, but sometimes we are worth listening to, even if we do not manage to achieve change in this Committee. I plead with the Home Office and members of the Committee to engage seriously with the concerns that we are flagging up.

At the weekend, the former Home Secretary, the right hon. Member for Bromsgrove (Sajid Javid), wrote that

“the Home Office has yet to implement the process of root and branch cultural change necessary in the aftermath of Windrush.”

I hope that, during the passage of the Bill, we receive some signals that the cultural approach of the Home Office, and its attitude to listening, is changing.

Clause 1 is the Bill in microcosm. I will not repeat my entire stage 2 speech, which I am sure hon. Members followed very closely indeed, but I take your advice on scope, Sir Edward. I am sad to say again that the SNP totally opposes clause 1, because it brings to an end what we regard as a valuable, simple and well-functioning immigration system of free movement. As a result, it extends what is a complex, expensive and unjust domestic system to EEA nationals. That is bad for the individuals caught up in it, who will face prohibitive fees, complicated procedures, broken families and diminished rights, but it is also bad for the economy. I do not think that any hon. Member present who paid attention to the evidence that we heard on Tuesday can remain 100% enthusiastic about the Government’s proposals for the immigration system come January. It will be an abject nightmare for many industries that have already been totally decimated by the coronavirus shutdown. We did not even hear from the tourism and hospitality industries, which are at the forefront of facing the challenges.

Clause 1 is also bad for Scotland—for our population growth, demographics, economy and tax base. If the task had been to design an immigration system for Scotland alone, nobody in their right mind would have come up with this one. The same is true—probably even truer—of Northern Ireland, with its land border with a country where free movement will continue. We will explore all these issues as we go through the Bill in more detail and discuss the amendments and new clauses that have been tabled. From my point of view, there is nothing much to celebrate and lots to regret about clause 1, and indeed schedule 1, and we oppose them both.

Break in Debate

Holly Lynch Portrait Holly Lynch - Hansard
11 Jun 2020, 12:19 p.m.

I am grateful to the Minister for a lot of the clarification in his opening remarks. We welcome clause 2, and its content is indeed necessary. We will, however, be asking for some further assurances through new clause 27, largely to reaffirm what the Minister has just said. That new clause asks the Secretary of State to

“publish a report detailing the associated rights of the Common Travel Area”.

We heard from both Alison Harvey and Professor Ryan that although clause 2 is welcome and offers a degree of clarity as free movement rights are stripped away from both Irish and British citizens, as well as those in Northern Ireland who identify as both, there are some outstanding areas that require further clarification, including the scope of reciprocal rights under the common travel agreement. Clause 2 shows that many of the rights granted to Irish citizens through the common travel area are facilitated through freedom of movement. If not in the present Bill, do the Government plan to legislate to enshrine the provisions of the common travel area as reciprocal rights, rather than purely as changeable administrative arrangements, and, if so, when?

As Professor Ryan highlighted on Tuesday, more must be done to clarify the status of acquisition of British nationality, for British-born children, children born to Irish parents and Irish citizens wanting to naturalise. At the moment it is incredibly hard to ascertain the exact immigration status of those individuals and to know, for example, whether they have time limits on their visas or have ever breached immigration laws. If the Government truly want to redefine the British immigration system, they must answer those questions to clear up the ambiguity surrounding British citizenship law.

I am sure that the Minister will understand some of the nervousness about deportations. He referred to it in his opening remarks on the clause. To give the Committee some context to work with, I asked Professor Ryan at column 35 in the evidence sitting on 9 June whether he was aware of examples in recent history when an Irish citizen had been deported, either because a court had recommended deportation on sentencing, or because a Secretary of State had concluded, owing to the exceptional circumstances of the case, that the public interest required deportation. If I am not mistaken, the Scottish National party spokesperson also put a similar question to Alison Harvey. No specific examples could be provided. If the Minister is aware of any, I should welcome it if he would share them with the Committee to support the discussion.

We still do not know the Government’s proposed threshold for deportation of Irish citizens. It would be helpful if that could be clarified. Ideally, the Government would enshrine that in legislation or at least make a commitment during the passage of the Bill to state explicitly how deportation and exclusion will be used for Irish citizens in future. Professor Ryan has said that owing to the arrangements in the common travel area the threshold for deportation and exclusion of Irish citizens is notionally higher than that of other nations. Seemingly, it is more rarely, if ever, exercised.

As I have mentioned, the Good Friday agreement allows people born in Northern Ireland the right to identify exclusively as Irish or British, or as both. Irish citizens are referred to in the Bill, so can we assume that that reference includes Northern Ireland-born citizens who do not identify as British? If so, will the Minister make it clear in the Bill that people in Northern Ireland who identify exclusively as Irish, per the Good Friday agreement, are exempt from deportation and exclusion?

Without such a commitment, there is inevitably some anxiety. Alison Harvey made a case for mitigating the risk through the right to abode. If that were implemented, it would guarantee a raft of citizenship rights, so I welcome feedback from the Minister on that approach. As well as clarifying the status of Northern Irish citizens who identify solely as Irish, the right to abode would also alleviate the loophole through which someone with an Irish passport is not granted protections on arriving in the UK, because they have travelled from a country outside the common travel area.

We are supportive of the clause and will not oppose it, but will return to some of its content in debate on new clause 27.

Stuart C McDonald Portrait Stuart C. McDonald - Hansard
11 Jun 2020, 12:24 p.m.

Given what the Minister and shadow Minister have said, I can, I hope, be helpfully brief. I am grateful to the Minister for clarifying the position on deportation, but the shadow Minister raises a reasonable point. The Minister has clarified the policy— but why not put it on the face of the Bill? I very much welcome the Minister’s confirmation of how Irish nationals will be able to come from outside the CTA with family members. It is a welcome clarification.

I want briefly to refer to the broader issue of common travel area rights. We are often told about the historic common travel area, and the fact that the rights go back many decades. That is true, but in recent years most of those rights have become embedded in and entangled with free movement rights. In the Bill, we are repealing those rights but not replacing them with common travel area rights. The Government keep talking about reciprocal rights, but we need them to be set down in statute.

So far, as the Minister said, there seems to be a non-binding memorandum of understanding with the Government of Ireland, and a Government position paper, setting out the fact that there will be rights to work, study, social security and healthcare access, and vote. For the Irish Human Rights and Equality Commission, essentially those CTA rights are “written in sand” and for the Committee on the Administration of Justice the CTA can be characterised by loose administrative arrangements of provisions that can be altered at any time. So we need to return to this issue of when we will actually see a detailed scheme of rights for the common travel area.

There is some urgency about this matter, because at the moment, for example, there are people in Northern Ireland who choose to be Irish citizens and who have the option of applying under the EU settled status scheme, but they will have to make that decision without really knowing how the benefits of the EU settled status scheme compare with the benefits of the common travel area scheme, because that has not been spelled out in great detail yet. There are practical issues that have been flagged up by the organisations I have mentioned about cross-border rights to access healthcare and education, and so on. All these questions need to be answered, and fairly urgently.

Finally, I will echo what the shadow Minister said about Alison Harvey’s evidence on the right of abode, and I would be interested to know whether the Government are considering achieving some sort of resolution of these issues by using the right of abode. However, we will return to these issues when we debate the new clause that the shadow Minister has tabled.

I welcome clause 2, but we still have a considerable way to go in making sure that the common travel area persists and works properly, and that folk know where they stand.

Break in Debate

Holly Lynch Portrait Holly Lynch - Hansard
11 Jun 2020, 12:32 p.m.

There is so little in clause 3 that we will not make a contribution to it.

Question put and agreed to.

Clause 3 accordingly ordered to stand part of the Bill.

Clause 4

Consequential etc. provision

Stuart C McDonald Portrait Stuart C. McDonald - Hansard

I beg to move amendment 2, in clause 4, page 2, line 34, leave out “appropriate” and insert “necessary”

This amendment would ensure that the Secretary of State may only make regulations which are necessary rather than those which the Minister considers appropriate.

Break in Debate

Stuart C McDonald Portrait Stuart C. McDonald - Hansard
11 Jun 2020, 12:33 p.m.

I am pleased to speak in support of the amendments. At this stage I expect to get the Government Members excited because I am urging them to take back control, by which I mean take back control of immigration policy from the Home Office and keep MPs in a job. Like most hon. Members I have become familiar with the broad powers of delegated legislation and sweeping Henry VIII powers in recent years through both immigration legislation and more recently through Brexit. The Government are taking increasingly more and more powers to rewrite not only subordinate legislation but primary Acts of Parliament with very little constraint. I do not think that anyone here would dispute that in certain circumstances such powers can be sensible and useful, but they should be exceptional and limited. Instead, the practice has become so routine that if it goes on we might as well shut down Parliament or end its role as a legislator.

I am grateful to the witnesses who spoke on Tuesday and to the organisations that provided briefings, including the Law Society of Scotland, Amnesty International, the Immigration Law Practitioners’ Association, Justice, Liberty, the Equality and Human Rights Commission and others. There are big concerns about this clause.

In tabling the amendments I have also relied on the report of the House of Lords Delegated Powers and Regulatory Reform Committee and its 46th report in the last Session, which was an analysis of the predecessor Bill. It is fair to say that their lordships were not impressed with clause 4. It is noticeable that they went out of their way to prepare the report in advance of Committee stage so that we could benefit from their advice. I regret that the Home Office is still not listening to that sage advice at all.

The sweeping power is set out first in clause 4(1), where the Home Secretary can make any provision that she thinks “appropriate” in relation to the whole of part 1 —in other words, related to free movement. Clause 4(2) makes it clear that this can include amending any Act of Parliament as well as retained EU legislation. There are various subsections about the procedures that would be required to be used when exercising those powers, which is something that I suspect we will return to later.

The word that appears several times in the House of Lords report is “significant”. Their lordships had significant concerns about significant delegation of powers from Parliament to the Executive on such a significant issue that concerns a significant number of people. Amendments 2, 3, 20, 21 and 4 are designed to cut those powers done to size and to keep MPs in a job. It is quite informative to look at the explanatory memorandum to the same Bill from this time last year. The memorandum explains, for example, how the powers would be used to set up appeal rights for EEA nationals. All those things have already been taken care of in the year that has passed, yet nothing has changed in the formulation of clause 4. The Government still say they need such powers, even though they have done everything that they envisaged using those powers for in the explanatory memorandum from this time last year.

The European Union (Withdrawal Agreement) Act 2020 was passed at the start of the year, and it contains a whole part on citizens’ rights of residence, frontier workers, deportation appeals, non-discrimination and so on. It includes extensive powers of delegated legislation as well, but at least they are constrained by the requirement that they should be exercised in order to implement the provisions of the withdrawal agreement that relate to citizens’ rights. As I say, a lot of what the Government originally envisaged they would use these powers for has already been accomplished.

Amendment 2 refers to an argument that we have had many times before. It is about requiring use of the powers to be “necessary” rather than merely considered appropriate by the Minister. Again, there is no genuine objection to being able to make rules if we suddenly have to make changes for a deal or a no-deal situation in the future relationship, but that should not just be at the whim of Ministers deciding what is appropriate and what is not. Their lordships and various stakeholders have recommended a test of necessity, and that is what is in amendment 2.

Amendment 3 is probably the most critical amendment and takes out the words “in connection with”. I refer again to the House of Lords Committee report, which said:

“We are frankly disturbed that the Government should consider it appropriate to include the words ‘in connection with’. This would confer permanent powers on Ministers to make whatever legislation they considered appropriate, provided there was at least some connection with Part 1, however tenuous; and to do so by negative procedure regulations”.

So their lordships are not very happy at all with what the Government propose.

Amendments 20 and 21 come from the House of Lords Committee report, but there have been perfectly sensible suggestions from Amnesty International, with similar ideas from other stakeholders. Amendment 20 would limit the scope of powers so that regulations cannot be made in relation to any old provision in part 1; they must relate specifically to schedule 1. Again, I emphasise that it can be acceptable to have limited powers in order to tidy up the statute book and the detailed list of provisions in the schedule. As matters stand, however, clause 2 means that we could have sweeping changes made to the rights of Irish citizens on the whim of the Secretary of State. Indeed, on the face of it, delegated powers could be used to alter clause 4 in order to increase the Executive’s powers yet further. That cannot be acceptable.

Amendment 21 would put a simple sunset clause of one year on the use of these powers. Should the Government have not tidied up the statute book by this time next year, something seriously wrong will have happened. Alternatively, something seriously positive will have happened and we will have extended the transition period by a couple of years. In either case, there will be plenty of time to legislate afresh. Everyone gets the argument that sweeping powers should not be left on the statute book forever; hence the sunset clause.

Amendment 22 puts a sunset clause on changes made by subordinate legislation. If the Minister really thinks there is such a rush that he cannot proceed by primary legislation, he should make the regulations. He should then come back to the House of Commons with a proper Bill, so that we can do our job as legislators and decide whether to keep those provisions in force or let them lapse.

In some ways, I am just sticking up for MPs. I want us to be able to continue to be the primary legislators in the field of immigration law and that we should start taking back some control from the Home Office.

Holly Lynch Portrait Holly Lynch - Hansard
11 Jun 2020, 12:40 p.m.

I rise to speak to amendment 12, as well as demonstrate support for amendments 2 to 4, which also have our full support. With your permission, Sir Edward, I will focus my comments on the amendments relating to the transfer of powers in clause 4, and my hon. Friend the Member for Stretford and Urmston will speak specifically to amendment 15, which is part of this group but is on a slightly different issue and relates to the impact that this legislation will have on children.

It is a pleasure to follow the SNP spokesperson, the hon. Member for Cumbernauld, Kilsyth and Kirkintilloch East, who made an articulate speech on the concerns about the Henry VIII powers. The reason we are all here physically today and not fulfilling our duties from home is this Government’s commitment to parliamentary scrutiny. Unfortunately, this transfer of powers seems to be inconsistent with that approach.

The arguments were incredibly well rehearsed on Second Reading during the previous Parliament, in Committee and in the House of Lords Delegated Powers and Regulatory Reform Committee, as we have already heard. That is why it is so disappointing that the Government have not reflected on that feedback and adapted their approach.

Clause 4 as it stands confers an extremely wide power on the Home Secretary to make whatever legal amendments they consider appropriate in consequence of, or in connection with, any provision of the immigration part of the Bill. That includes the ability to amend primary legislation. I am sympathetic to the Government’s stated intention behind the clause—namely, that it will ensure coherence across the statute book following the substantial changes brought about by the ending of free movement, and deliver the required tweaks to legislation. However, clause 4 is drafted so widely that it could relate to almost any aspect of immigration law, and given that there is no time restriction on the clause or the powers within it, the concern is that there is potential for those powers to be used far beyond the aims of this Bill.

Adrian Berry of the Immigration Law Practitioners’ Association, whom we heard from earlier this week, commented on the powers referenced in the Bill, including in clause 4(5). During that evidence session, he said:

“How is the ordinary person, never mind the legislator, to know whether the law is good or not…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…list in the Home Office of these provisions and it would be better if they are expressed in the schedule to the Bill.”––[Official Report, Immigration and Social Security Co-ordination (EU Withdrawal) Public Bill Committee, 9 June 2020; c. 52, Q106.]

He went on to confirm that any responsible Opposition would have to table the amendments in this group in the absence of that list.

As we have heard, amendment 2 would replace the word “appropriate” with “necessary” in clause 4, line 34 on page 2 of the Bill, and amendment 3 would leave out “, or in connection with,” on the same line. With amendment 4, we seek to leave out subsection (5) altogether. We are also supportive of amendment 20.

On the specific proposed changes, as has already been said, the Lords Delegated Powers and Regulatory Reform Committee considered the almost identical version of the Bill in the 2017-19 Parliament. It said:

“We are frankly disturbed that the Government should consider it appropriate to include the words ‘in connection with’. This would confer permanent powers on Ministers to make whatever legislation they considered appropriate, provided there was at least some connection with Part 1, however tenuous; and to do so by negative procedure regulations”.

The Committee expressed significant concerns about subsection (5), recommending that it be removed altogether, which is exactly what we are seeking to do,

“unless the Government can provide a proper and explicit justification for its inclusion and explain how they intend to use the power.”

The reason is that

“it confers broad discretion on Ministers to levy fees or charges on any person seeking leave to enter or remain in the UK who, pre-exit, would have had free movement rights under EU law.”

I argued on Second Reading that this approach is bad not just for parliamentary democracy, but for our public services and for the economy—a sentiment shared by the London Chamber of Commerce and Industry in an evidence session this week. Parliamentary scrutiny is the most effective way for stakeholders to work with MPs to shape legislation to respond to the needs of the country, and they are being denied that opportunity with the transfer of powers in this clause. The Immigration Law Practitioners’ Association, the British Medical Association, London First, Universities UK, the National Union of Students, trade unions and the Children’s Society are just a sample of the cross-section of organisations that have all expressed concerns that this transfer of powers to the Executive is not the way to develop quality and robust legislation.

During the attempted passage of the Bill in the last Parliament, the then Minister, the right hon. Member for Romsey and Southampton North (Caroline Nokes), set out a number of reasons why the powers in clause 4 were necessary. As the SNP spokesperson has already said, a number of those reasons have since been addressed, yet the powers remain.

Since then, almost all those powers have been rendered irrelevant by the passage of other pieces of primary and secondary legislation. I will rebut just a couple of arguments. The then Minister said:

“In the unlikely event that we leave the EU without a deal, the power will enable us to make provision for EEA nationals who arrive after exit day but before the future border and immigration system is rolled out”.

There is now a deal on citizens’ rights in place, so they will not be affected by negotiations on the future relationship.

The then Minister also said that the clause would allow the Government to

“align the positions of EU nationals and non-EU nationals in relation to the deportation regime”.—[Official Report, Immigration and Social Security Co-ordination (EU Withdrawal) Public Bill Committee, 26 February 2019; c. 183-84.]

However, regulation 17 of the Immigration, Nationality and Asylum (EU Exit) Regulations 2019 makes amendments to deportation thresholds, so it is unclear why any further transfer of power is necessary in the Bill.

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

(Committee Debate: 4th sitting: House of Commons)
Debate between Holly Lynch and Stuart C McDonald
Thursday 11th June 2020

(3 months, 1 week ago)

Public Bill Committees
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Home Office
Stuart C McDonald Portrait Stuart C. McDonald (Cumbernauld, Kilsyth and Kirkintilloch East) (SNP) - Hansard
12 Jun 2020, 12:05 a.m.

It is a pleasure to see you in the Chair, Mr Stringer. I am grateful to the Minister for his extensive response, but he is right in one thing, which is that he has not fully satisfied me about the need for these powers. Much of what he said related to how the Government propose to use these powers or what they are planning to do, but that is not how we should go about assessing whether the scope of the powers is appropriate. We need to assess what the scope of these powers would, in theory, allow the Government to do, and that goes way beyond what he set out.

We do not hand powers to the Government on the basis of assurances that they are going to do only a, b and c. Listening to the list of proposals the Minister made, I am utterly unconvinced that that could not be done very simply with a much more narrowly drawn clause and power. Nothing in any of these amendments would stop the Government bringing free movement to an end—sadly.

The Minister alluded to the fact that some of this is about trying to limit the scope for judicial oversight. I am trying to keep MPs in a job here scrutinising legislation, but I am also trying to make sure the judiciary is not excluded from the proper review of the use of Executive power. The House of Lords Delegated Powers and Regulatory Reform Committee said that these are “significant” powers and also used the word “disturbing” at one point, so I am afraid I cannot accept the Minister’s explanation that they are justified.

On amendment 22, I am disappointed that the Minister did not engage with the principles themselves, because other amendments have been tabled with respect to the principles of immigration law and we are constrained by the scope of this Bill to limiting these amendments to dealing with EU, EEA and Swiss nationals. Although that does not mean we think we should be confined in this way to them, it is in the Government’s gift to extend this much more broadly, so I am very disappointed that he did not engage with what those principles are. I hope we will have a fuller debate when we come to other amendments. On that basis, I shall press amendment 2 to a vote.

Question put, That the amendment be made.

Holly Lynch Portrait Holly Lynch (Halifax) (Lab) - Hansard
11 Jun 2020, 2:21 p.m.

I beg to move amendment 13, in clause 4, page 3, line 8, at end insert—

“(5A) Regulations under subsection (1) must provide that EEA nationals, and adult dependants of EEA nationals, who are applying for asylum in the United Kingdom, may apply to the Secretary of State for permission to take up employment if a decision at first instance has not been taken on the applicant’s asylum application within six months of the date on which it was recorded.”

May I say what a pleasure it is to serve under your chairmanship again this afternoon, Mr Stringer? The amendment would give European economic area and Swiss nationals who apply for asylum in the UK the right to apply to the Secretary of State for permission to work if a decision has not been taken on the applicant’s asylum application within six months of the date on which it is recorded as having first been made.

The amendment is the legislative outcome of the Lift the Ban campaign, a movement headed up by Refugee Action and with the support of more than 200 organisations, including the likes of Oxfam and the British Red Cross; trade unions, including the National Education Union, Unison and the TUC more broadly; industry players such as Ben & Jerry’s and the Confederation of British Industry; and organisations such as the Adam Smith Institute. We worked on the drafting of the amendment with Refugee Action, as well as with legal professionals, and we are of course truly grateful, as ever, to the Committee Clerks. The proposal is limited to EU nationals to ensure that it falls within the scope of the Bill.

This amendment was tabled by my hon. Friend the Member for Stretford and Urmston in the Bill Committee on the previous version of this Bill during the 2017-19 Parliament. At that point, the Government argued that the UK is allowed to treat an asylum claim made by a citizen of an EU country as automatically inadmissible unless exceptional circumstances apply, and that a claim made by a non-EU EEA national would be considered on the basis that it is likely to be clearly unfounded. The implication was that there would be no one who would benefit from the amendment, and in any case treating asylum seekers from the EEA differently from those from the rest of the world on the grounds of their nationality was not only illogical but discriminatory.

The Minister and I know, though, that the amendment sets out the proposal in principle, within the bounds of what is permissible in respect of the scope of the Bill. It gives us the opportunity and the platform to outline the case for change, and I am delighted that it also has the support of SNP Members.

In August and September 2018, the Lift the Ban coalition conducted a survey with a group that had direct experience of the asylum process and found that 94% of all respondents said they would like to work if they were given permission to do so. We have all met asylum seekers: they are people not dissimilar to ourselves who have often had to flee their own countries when faced with immediate danger. They are often skilled, able to work and want to work. Rose is one example. She is currently in the asylum system, so I appreciate that she is not an EU national, but hers is the experience that we could start to change and transform if the Government accept the merits of the amendment.

Rose has been waiting for a decision on her asylum claim for three years. Not having the right to work while she waits for a decision on her asylum claim is not only putting pressure on her family life but damaging to her children, who are unable to understand why she cannot work. She said:

“Not being able to work, it cripples you…As a parent, you feel that you are not good enough…When you have kids, their daily needs—there are things that you need to give them. If I were working, I would not have to go to charity shops all the time to get hand-me-downs for my kids.”

Rose wants to be given the opportunity to be productive and show what she is capable of. She said:

“I want to work so I can prove myself to my children.”

The amendment would give people in the future asylum system from EEA countries the opportunity to use their skills and make the most of their potential. It would improve the mental health of people such as Rose in the asylum system by giving them a sense of worth and purpose, and it would enhance the opportunities for integration into their new communities, as well as allowing them to satisfy the strong work ethic that Rose clearly has and wants to pass on to her children.

The impetus for this change has only been intensified by the coronavirus pandemic. The brilliant campaigning and advocacy from the group Freedom from Torture has shone a light on the pittance that asylum seekers receive in support rates. At present, people in the asylum system receive a little over £5 a day per person in allowances. While at the onset of the crisis the Chancellor increased universal credit by £20 a week to “strengthen the safety net”, no proportional measures have yet been introduced for asylum support rates.

The uncertainty and rise in demand for specific items due to the pandemic has only exacerbated the difficulty faced by asylum seekers in finding the supplies they need to keep themselves and their families healthy and safe. Even before the onset of coronavirus, 52% of Refugee Action survey respondents reported having to use a food bank at some point within the last 12 months. If the Government are not minded to increase asylum support rates, it is both moral and logical to grant asylum seekers the right to work after six months. To forbid both options is to back some of the most vulnerable people in our society into an unescapable corner.

The Government could transform the financial health of a vast number of asylum seekers by accepting the amendment. Additionally, it would allow asylum seekers to play an active role in getting the British economy moving again, following the immense disruption caused by the pandemic. Refugee Action estimates that this change in policy could benefit the UK economy through net gains for the Government of £42.4 million. This would also be an overwhelmingly popular policy. Refugee Action carried out a survey of the public where 71% agreed that people seeking asylum should be allowed to work.

Accepting the amendment would help to fix the structural and deeply entrenched problems that exist with the current system. People seeking asylum in the UK can only apply for the right to work after they have been waiting for a decision on their asylum claim for over a year. The UK is the global outlier in time taken to give people in the asylum system the right for work. Ireland, Hungary, France, the United States and Poland, to name just a few, all have a much swifter process.

Even then, the few people who are granted such permission are rarely able to work in practice because their employment is restricted to the list of professions included on the Government’s shortage occupation list. This is the equivalent of putting square pegs in round holes, and disregards the skills and potential of many people in the asylum system. Refugee Action found that 74% of survey participants had secondary level education and 37% had an undergraduate or postgraduate degree. People in the asylum system can and should work in a wide variety of jobs that are hugely beneficial to both the UK economy and public wellbeing.

My involvement with the campaign is largely thanks to two amazing women in my own constituency. I pay tribute to Veeca Smith and Florence Kahuro, who set up the wonderful and incredibly effective local campaign group Sisters United. I am sure they would be delighted to meet the Minister in the not-too-distant future—I am sure he would struggle to get a word in edgeways. They are absolutely brilliant. They both sought asylum in the UK and founded the group to offer peer support to others in their situation and campaign for simple things such as accommodation that is not plagued by health and safety issues, and the right to go out and earn for themselves.

I hope that the Minister will appreciate the broad consensus that exists behind this amendment and accept the multitude of benefits that adopting the amendment would bring. It is time we treated people in the asylum seekers with dignity and as people with unrecognised potential to contribute to our society.

Break in Debate

Holly Lynch Portrait Holly Lynch - Hansard
11 Jun 2020, 2:44 p.m.

I am grateful for the Minister’s constructive response, but as I am sure he will appreciate, I am also a little disappointed by it.

I pay tribute to my hon. Friend the Member for Coventry North West and congratulate her on what I think was her maiden Bill speech, which was an excellent contribution. [Hon. Members: “Hear, Hear.”] Very well done.

We accept that the spirit of the amendment would not be able to be delivered as intended through this particular measure. However, we will continue to work with Members across the Benches, in coalition, to move towards the change that we would very much like to see. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Amendment proposed: 15, in clause 4, page 3, line 8, at end insert—

“(5A) The Secretary of State may make regulations under subsection (1) only if satisfied that the regulations would have no detrimental effect on the children of EEA and Swiss nationals resident in the United Kingdom.

(5B) Before making regulations under subsection (1) the Secretary of State must lay before Parliament, and publish, a statement explaining why the Secretary of State is satisfied as mentioned in subsection (5A).”—(Kate Green.)

Question put, That the amendment be made.

Stuart C McDonald Portrait Stuart C. McDonald - Hansard

I beg to move amendment 5, in clause 4, page 3, line 9, leave out subsection (6).

This amendment would narrow the scope of the powers provided to the Secretary of State in Clause 4, as recommended by the House of Lords Delegated Powers and Regulatory Reform Committee.

Break in Debate

Stuart C McDonald Portrait Stuart C. McDonald - Hansard
11 Jun 2020, 2:49 p.m.

We are back to the nuts and bolts of delegated legislation. This time, rather than considering the scope of the powers, we are looking at the procedures that should be used when they are exercised. Amendment 5 is designed to keep MPs in a job: we should be ensuring that we maximise our role in scrutinising what the Government do with their power to make laws.

Clause 4(6) to (10) sets out the procedures for making these regulations. I apologise in advance, Mr Stringer, if I get some of the terminology wrong. Even after five years in this place, I still regularly confuse my made affirmative, affirmative and negative procedures. As I understand it, the most extreme made affirmative procedure is allowed for the first set of regulations that would be made under the clause. That means that the Government would be able to bring rules into force immediately, before MPs had the chance to scrutinise the proposals. MPs would then have 40 days to pass an affirmative resolution to keep the rules in place. No good parliamentarian should ever be comfortable allowing the Government to bring rules into force before we even have the chance to look at them.

The more usual affirmative procedure would apply to subsequent draft statutory instruments through which the Government were amending Acts of Parliament. That too is a really drastic power, but it would mean that nothing came into force until we positively approved it. Although I object to Henry VIII powers for rewriting Acts of Parliament, if they must exist, that should be the method for regulation making here.

Other regulations that do not directly impact on Acts of Parliament would use the much less satisfactory negative procedure. Although a draft of those regulations would still be tabled before they came into force, they would almost inevitably do so unless, exceptionally, Parliament prayed against that negative resolution. All these amendments do is ensure that MPs have their say, and have a proper role in scrutinising the Government before regulations come into force, which is important given the very important subject, and the effect that these provisions could have on immigration law. I hope the Committee will be sympathetic to what we argue for.

Holly Lynch Portrait Holly Lynch - Hansard
12 Jun 2020, 12:01 a.m.

As the SNP spokesperson says, this group of amendments, like most of those in the previous group, continues to seek to limit the transfer of powers to the Executive and away from Parliament. We have gone over the arguments against such sweeping Henry VIII powers in principle at length, so I will not repeat those. This group largely seeks to ensure that regulations made under clause 4 are subject to the affirmative procedure, and to leave out subsection (6).

Martin McTague from the Federation of Small Businesses was I think the only witness who said in his evidence on Tuesday that he actually did see some merit in the powers in clause 4, yet when asked further, he was keen to stress that

“the Home Secretary will be answerable to Parliament about the decisions that she or he has made. That would be a way in which Parliament could ensure there was proper scrutiny.”––[Official Report, Immigration and Social Security Co-ordination (EU Withdrawal) Bill Public Bill Committee, 9 June 2020; c. 14, Q29.]

However, as the Bill stands, proper scrutiny will be missing.

As has been said, proper scrutiny is exactly what we are in the business of in this place. It is why the Government say they have thrown caution to the wind in returning to a physical Parliament when we could have been undertaking our duties from home, as is still the public health advice. If the Leader of the House is such a big fan of parliamentary scrutiny, why are we going to such lengths to avoid it with these powers? Putting changes through the affirmative procedure has to be the way forward if we are to shape legislation for the better and deliver on parliamentary democracy. That is why we support this group of amendments.

Break in Debate

Stuart C McDonald Portrait Stuart C. McDonald - Hansard
11 Jun 2020, 3:21 p.m.

I beg to move amendment 14, in clause 4, page 3, line 28, at end insert—

“(11) Regulations made under subsection (1) must make provision enabling UK citizens falling within the personal scope of the Withdrawal Agreement, the EEA EFTA separation agreement or the Swiss citizens’ rights agreement to return to the UK accompanied by, or to be joined in the UK by, close family members with whom they lived while residing in the EEA or Switzerland.

(12) Regulations under subsection (1) may not impose any conditions on the entry or residence of close family members which could not have been imposed under EU law relating to free movement, as at the date of this Act coming into force.

(13) References in subsection (11) to the Withdrawal Agreement, the EEA EFTA separation agreement and the Swiss citizens’ rights agreement have the same meaning as in the European Union (Withdrawal Agreement) Act 2020.”

This amendment would mean UK citizens who had been living in the EEA or Switzerland but wish to return to the UK, could continue to be accompanied or joined in the UK by close family members who would otherwise lose their rights (under the Surinder Singh route) because of this Act.

I am being kept busy this afternoon. I am pleased to move amendment 14. Once again, it is all about family. We are talking about what became known as the Surinder Singh route, because of a judgment of the European Court of Justice. I talked in my previous contribution about the unfairness of separation that immigration rules can cause; in the case of the Surinder Singh families, that is coupled with a real sense of unfairness and the loss of a legitimate expectation.

We are talking about UK citizens who have gone to live somewhere in the EEA at a time when the rules were quite clear that the UK was part of the European Union, so there would never be any conceivable difficulty about being able to return to this country with family that they may have settled down with in another EU country.

To my mind, we should say that they had a legitimate expectation when they left that they would be able to return to this country at the appropriate moment with their EU family members. The problem now arises that if they return after the transition period that the Government have put in place—it is better than nothing; that is absolutely true—they will face the £18,600 threshold, which I previously alluded to.

There are folk over there with huge dilemmas to address. The briefing we have had from British in Europe sets out a very typical example. Sarah is a 48-year-old British national living in Germany with her 52-year-old German husband and children. She is the only child of an elderly mother in the UK. Career and schooling reasons mean that she cannot realistically return to the UK by March 2022. What happens if Sarah’s mother becomes so frail or ill that she needs the care of her daughter in five years’ time? Sarah will have a huge decision to make: either to uproot her family at a hugely disruptive and inconvenient time, to come back to look after her mother, or to leave her family behind and come back to look after her mother. Alternatively, she will just have to hope that her mother is able to cope.

Sarah was not negligent in going abroad without taking this future prospect into account when she made the decision to travel and live in Germany, because it just did not arise. We were part of the EU and free movement was always going to be there.

I am grateful for and welcome the fact that the Government have reviewed the immediate cut-off, but 2022 does not give enough time. Why do we not have an open-ended cut-off for the people from this country who have made their lives in other parts of the European Union or the EEA, and let them return here under the regime that was in place when they left? That is the purpose of amendment 14, and I hope it will have a sympathetic hearing.

Holly Lynch Portrait Holly Lynch - Hansard

Once again, we are very sympathetic to the amendment. As we have already heard, it is not dissimilar to amendment 1, and it would offer reassurance to the 1.2 million British nationals who live in EU countries. Failure to implement measures such as those proposed in the amendment would show the Government’s indifference to British citizens who decided to make their homes and lives in Europe and, as in the example we have just heard, could force people to choose between loved ones there and loved ones here.

The example provided by British in Europe paints a picture of something that is affecting thousands of people and has the potential to affect thousands more in future, as family members age and their circumstances change. The amendment characterises the significance of forming laws and policies; what is discussed and decided on in this building has far-reaching implications and consequences affecting vast swathes of people in their day-to-day lives.

Until March 2022, any citizen going to live in an EU 27 country did so with the security of knowing that if they were to form a relationship and/or have a family, they would have the right to return to the UK with their partner and family, with no or very few conditions attached. That was the point I made to the Minister in challenging and seeking further clarification on some of his points about differences being potentially discriminatory against returning UK citizens and spouses from other parts of the world, not just EEA countries.

As I am sure we can all appreciate, families and relationships can be complex. The provisions afforded to British citizens through freedom of movement would allow any citizen to return to the UK with their partner and family if a situation arose where they needed to do so, potentially at quite short notice. If the UK citizen returned to be either employed or self-employed, there would be no conditions on their return; if they returned to be a student or to be non-economically active, they would have to have sufficient resources not to become a burden on the social assistance system of the UK, and have comprehensive health insurance.

In comparison, under the proposed new immigration rules, spouses and partners who wish to enter the UK with their British partner will have to meet the minimum income requirement of £18,600, and the figure is increased if the family have children. That is a wholly restrictive requirement that will severely deter families from returning and coming to the UK. In some cases, it may stop British citizens returning to the UK altogether.

As highlighted in evidence by Jeremy Morgan, the right of citizens to return with their families to their country of origin was deemed outside the scope of the UK-EU withdrawal negotiations, resulting in a serious inequality between UK citizens in the EU and EU citizens in the UK. Bizarrely, the UK Government are discriminating against their own citizens in this instance, since nationals continue to enjoy their right to return to their countries of origin with their non-EU family members.

Furthermore, EU citizens resident in the UK and covered by the withdrawal agreement also have an unconditional lifelong right to bring in family members, including non-EU members, to the UK, provided that the relationship existed before the end of the transition period. The amendment tabled would address that discrepancy.

The coronavirus pandemic has only heightened the need for the Government to carry out their basic duty to support UK citizens living abroad. What if the pandemic had occurred after 29 March 2022? As countries began lockdown, British citizens in Europe would have been faced with the unenviable choice of remaining or hastily returning to the UK. The minimum income requirement would have meant that many British citizens and their families would have been simply unable to return, despite both global and personal crises.

Break in Debate

Stuart C McDonald Portrait Stuart C. McDonald - Hansard
11 Jun 2020, 3:42 p.m.

I have had that intervention before, and I think I answered it. There is one individual who would be expected to apply to the scheme but at some point in the past—I am not sure what his current position is—he said that as a point of principle he does not want to apply. I have said previously that I do not agree with him, but the hon. Gentleman cannot possibly accuse the Scottish Government or the SNP of not being clear about the messaging—they have invested considerable sums of their own money in outreach and in attempting to get as many folk as possible to sign up to the scheme. For that reason, I do not accept the premise. I disagree with that one colleague, but I absolutely reject the premise that we have been anything other than clear in encouraging people to sign up.

The reasons folk will not sign up are not related to the position of an individual politician. Folk will not sign up because they are vulnerable, as we have spoken about—care leavers; children; elderly people who perhaps were settled and had permanent residence under the old EU scheme; and people who quite simply just do not understand that they have to do it.

There are really complicated questions involved. For example, lots of folk will think, “Well, I was born in the United Kingdom, so I am British,” but in actual fact whether or not they are British depends on a million different things. It depends on the marital status of their parents, depending on when they were born. It depends on their date of birth. It might even depend on when a particular country joined the EU, as that can have an impact on the conferring of nationality. There are millions of different issues.

It is beyond doubt that on 1 July next year we are going to wake up in a United Kingdom that has 100,000 people who do not have the right to be in this country. We have to be constructive and come up with a solution, but we do not yet have enough from the Government on what they want to do. We get told, “We’ll be reasonable,” but that really does not cut. We need to do better than that, which is why we have tabled other amendments to push the Government to be much more explicit about how they are going to treat folk who apply after the deadline, for whatever reason.

The simple point, which is consistent with all the work that has gone before and does not undermine it in any way, is to turn around now and say, “Right, we are doing well, but we are just going to say that everybody has these rights. Continue to apply so that you can go about living your lives without being refused renting or a job or whatever else, but you have these rights.” It is a simple matter and would avoid a tremendous headache that would make Windrush look almost insignificant. That was cataclysmic; this situation risks being considerably worse.

Holly Lynch Portrait Holly Lynch - Hansard

Yet again, I rise to echo a great deal of what has already been said by the SNP spokesperson. The Opposition have spoken consistently in favour of a declaratory approach, and the Home Affairs Committee has also tabled an amendment outlining its preference for that approach, so, while we have sought to deal with the scheme in front of us by way of our amendments and new clauses, should he push amendment 16 to a vote, he would certainly have our support.

In our 2019 manifesto, we committed ourselves to ending the uncertainty created by the EU settlement scheme by granting EU nationals the automatic right to continue living and working in the UK. This new declaratory system would allow EU nationals the chance to register for proof of status if they wished, but they would no longer have to apply to continue living and working in this country. This would help to secure reciprocal treatment for UK citizens living in the EU, prevent a repeat of the shameful Windrush scandal and avoid unnecessarily criminalising hundreds of thousands of EU nationals.

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

(Committee Debate: 2nd sitting: House of Commons)
Debate between Holly Lynch and Stuart C McDonald
Tuesday 9th June 2020

(3 months, 1 week ago)

Public Bill Committees
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Home Office
Holly Lynch Portrait Holly Lynch - Hansard

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.

Stuart C McDonald Portrait Stuart C. McDonald (Cumbernauld, Kilsyth and Kirkintilloch East) (SNP) - Hansard

Q May I continue, Professor Ryan, on deportation? This very same issue arose this time last year, in a previous Bill Committee. Is it right that, at that time, the Immigration Minister made a commitment to the higher threshold, even though it was not in the Bill? Do I recall that correctly?

Professor Bernard Ryan: That is correct. I believe it was in the Committee stage, in the light of the evidence, perhaps, that the Minister made that commitment. Those commitments are obviously welcome, from my perspective.

Break in Debate

Holly Lynch Portrait Holly Lynch - Hansard
9 Jun 2020, 2:52 p.m.

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 Portrait Stuart C. McDonald - Hansard
9 Jun 2020, 2:54 p.m.

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.

Break in Debate

Holly Lynch Portrait Holly Lynch - Hansard
9 Jun 2020, 3:27 p.m.

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 Portrait Stuart C. McDonald - Hansard

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.

Break in Debate

Holly Lynch Portrait Holly Lynch - Hansard
9 Jun 2020, 4:01 p.m.

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 Portrait Stuart C. McDonald - Hansard
9 Jun 2020, 4:02 p.m.

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?

Break in Debate

Holly Lynch Portrait Holly Lynch - Hansard

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 Portrait Stuart C. McDonald - Hansard

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.

Break in Debate

Holly Lynch Portrait Holly Lynch - Hansard
9 Jun 2020, 4:40 p.m.

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 Portrait Stuart C. McDonald - Hansard
9 Jun 2020, 4:44 p.m.

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.

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

(Committee Debate: 1st sitting: House of Commons)
Debate between Holly Lynch and Stuart C McDonald
Tuesday 9th June 2020

(3 months, 1 week ago)

Public Bill Committees
Read Full debate Read Hansard Text Bill Main Page
Home Office
Holly Lynch Portrait Holly Lynch (Halifax) (Lab) - Hansard
9 Jun 2020, 10:34 a.m.

Q Bearing in mind what you have just said, what are the things that you would really like changed about the Bill? Alternatively, what would the Government need to do to support you to manage the impact that it will have on your businesses?

Matthew Fell: There are a few things that we would like to see in the proposed new immigration system. We believe that a temporary route for people to come and work in this country would be a helpful addition to the system as it is currently set up.

Secondly, I would say to accelerate efforts to streamline the proposed approach. The vast majority of businesses have never previously had to engage with the visa system; something like only 30,000 businesses in the country have grappled with it so far, because we have lived and worked with free movement of people for so long. It will be a big change, so I would say to accelerate the changes to streamline and improve the system, reduce red tape and so on.

The final piece, just to reiterate, is to accelerate efforts to get clarity and detail out there and known to businesses as soon as possible, so they can begin to familiarise themselves, prepare and get ready.

Stuart C McDonald Portrait Stuart C. McDonald - Hansard
9 Jun 2020, 10:34 a.m.

Q Last year, when you gave evidence to the Bill Committee, you described tier 2 as a

“restrictive, complex and burdensome system.”––[Official Report, Immigration and Social Security Co-Ordination (EU Withdrawal) Public Bill Committee, 12 February 2019; c. 67, Q178.]

Could you say a little more about what you mean by that?

Matthew Fell: There are a couple of areas. It comes down to some of the red tape issues, and there are a few examples. The initial sponsor licence, businesses tell us, is very document-heavy, in their words—for example, on the HR practices side, having to evidence, track and monitor things that small businesses feel are perfectly obvious. If they employ 10 or up to 20 people and one person is missing, that is self-evident; they know if a person is not there.

There is quite a lot in the reporting requirements that could be streamlined. Lots of people say to us, “We have to report it if a migrant’s pay has increased, and we don’t quite understand why. If they were already given the green light because they cleared the salary threshold, why would we need to report that that has increased?”

Thirdly, people feel that the volume of documentation required to be kept on file, including details such as notes from interviewing candidates, is quite onerous. Those are some of the examples of red tape burdens that we would welcome efforts to streamline.