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

Jack Brereton Excerpts

Thursday 14th February 2019 Public Bill Committees

[Paul Blomfield]

Q May I move to a different area—the right of appeal? You expressed concern about it earlier, and I assume that you also expressed your views about it fairly robustly in consultation with the Home Office. I guess that the Home Office would have said in reply that there was the option to pursue administrative review and judicial review. What was your reaction to that?

Professor Smismans: There are two issues. On the one hand, if there is a withdrawal agreement, it will require a right of appeal—at least, I hope that if there is a withdrawal agreement implementation Bill, that will be one of the things explicit in it. We do not know whether there will be a withdrawal agreement, and from what I hear there is no clear promise that we would get a right of appeal without one. I am an EU lawyer, not an immigration lawyer, so I am relying mainly on what I have heard from my colleagues in immigration, but we know that there have been considerable problems with how administrative review has worked in the past. It means the Home Office having to judge itself. That might be fine as a first access point or a first way to resolve things, if it works, but it is not enough; we need judicial review and the right of appeal on top.

[Jack Brereton (Stoke-on-Trent South) (Con)]

Q Obviously you are here to particularly represent those EU citizens who are currently living in the UK, but may I ask you the same question that I asked some of our panellists this morning about British citizens living in the EU? Do you think that all the EU countries have been doing everything possible and taking adequate steps to guarantee the rights of British citizens living in the EU?

Professor Smismans: No, they definitely have not. That is why it is so important that we get the withdrawal agreement or, if there is no withdrawal agreement, that we get a separate citizens’ rights agreement. What we have been asking for is that the citizens’ rights part of the withdrawal agreement be ring-fenced and adopted. The withdrawal agreement was agreed between the EU Commission and the UK Government; it did not pass in Parliament, but citizens’ rights were not the debated issue. If the withdrawal agreement fails, it will be because of the border between Northern Ireland and Ireland and the wider issue of where the future relationship is going, not because of citizens’ rights.

The best way to safeguard our rights is through the withdrawal agreement or, in the event of the failure of the withdrawal agreement, to have a separate citizens’ rights agreement under article 50. That would mean that British citizens in the European Union were protected at a supranational level; they would not depend on 27 national rules, in the same way that we do not depend just on the UK. It is a kind of balancing act, in the way that there has been a reciprocal solution between the rights of EU citizens here and British citizens in the EU. That would remain in place for that category of people on both sides. That is the best guarantee.

In any case, issues such as social security co-ordination will require international treaties. You can resolve some issues unilaterally or set out some guarantees in primary legislation, but for the issue of British citizens in the EU, doing that would depend on all the countries at a national level. As we have seen recently, there is not much willingness among European Union member states to let the European Union do that. If there is no agreement, it will mainly be up to national solutions in each country. On social security, you would then have to negotiate agreements between the UK and the 27 countries separately. Surely that would not provide the protection that the withdrawal agreement or a separate citizens’ rights agreement could provide.

[Jack Brereton]

Q Do you think that the UK and the EU have approached these issues from different perspectives?

Professor Smismans: The withdrawal agreement provides a solution. There is quite broad agreement on both sides, and within EU member states in general, about the solution for EU citizens. The problem is that it is linked to the fate of other dimensions of Brexit, and by linking that, once the rest falls apart, this guarantee falls apart unless you use article 50 to still adopt that.

That has to be done quickly, because once the UK is out of the European Union it cannot use article 50. That means that for all the rights set out in that agreement, if they have not been adopted under article 50, you have to go to the different legal basis of the new treaties, which does not give you the same powers. The complete set of rights protected there could never be protected in another way than through article 50, so once the UK is out, if these citizens’ rights have not been guaranteed, it will be too late to provide the same level of protection that we have now. At best, it will come up with a sub-optimal solution that will then have to be ratified in all the member states, so it will also take much more time, which means extra insecurity in the meantime.

--- Later in debate ---

[Kate Green]

Q I guess it would be possible to constrain the scope of what could be amended in delegated legislation more tightly than the Bill does.

Joe Owen: Yes, that is certainly an option.

[Jack Brereton]

You have mentioned the constraints of time, which, obviously, are potentially quite challenging. If we were to leave with a no-deal scenario on 29 March, and the Bill was in place by then, how do you think implementation on the ground would go? Would there be challenges to get things running in that timeframe?

Joe Owen: There are two things when it comes to no deal; there is the settlement scheme for EU citizens who are here before 29 March, and then there is the temporary leave to remain scheme for those who arrive afterwards. The first system is up and running and being trialled. While rights change in certain areas as a result of there being no deal, the process in the system is the same—so, credit to the Home Office for having a new technology system up and running and being trialled within two years. Most people, looking at Government IT projects, would say that was pretty impressive. Obviously it still has a long way to go before it can be said to be complete.

[Jack Brereton]

Q Do you think the ambition set out in the Bill—you mentioned ambition versus time—is appropriate, considering the constraints we face?

Joe Owen: The second part of your question—the bigger challenge to do with time—is about what happens to EU citizens who arrive after 29 March, on a temporary leave to remain. It is as true on this as it is for huge areas of the Government’s no-deal preparations: there is very little visibility, as to preparedness, in comparison with what would be expected for most major Government projects. In reports from the Infrastructure and Projects Authority, for example, there is little information about where Government preparedness is, on a host of no-deal issues. On the policy aspect, you get the sense that the temporary leave to remain is a bit of a Whitehall workaround, given the political incentive to end free movement if we leave without a deal on 29 March, but there are the practical problems of not being able to do much about that until you have registered as many as possible of the EU citizens who were here before 29 March and got a new system up and running. Neither of those things will be true for 30 March, so we have a registration scheme that will exist that will not really be enforced by landlords, businesses and employers in the same way as other parts of the migration system would be.

There is a big question about how that registration scheme will work in practice and what problem it is trying to solve besides saying, “We have ended free movement.” As with settled status, when we switch to a future migration regime, what happens at the back end to all those people who did not apply, for good or bad reasons—they may not have known that they needed to—and are not registered, or who do not then qualify for the future migration system? If that is a big number, will one of the first things that the UK Government do, after their new immigration system is put in place, be to close down bank accounts or start to deport loads of European citizens who came in that period? That would be a bold move.

That links back to how enforcement will work, particularly with the no-deal scenario. I appreciate that that has not necessarily answered your question about the powers in the Bill and the link to that, but it is an important question about how the no-deal scenario would work.

[The Chair]

I have four more people wishing to ask questions and 13 minutes.

--- Later in debate ---

[Afzal Khan]

Q The Government have said that they need the powers in clause 5 to introduce as yet unspecified post-exit policy changes in social security. Do you think it is right that we grant powers to the Government without knowing what they will do with them?

Kalba Meadows: I come back to the uncertainty. On clause 5 on social security co-ordination, 80% of the British living in Europe are of working age or below. That is an awful lot of people potentially affected by social security aggregation, and add to that the pension issues that Jeremy has already outlined. We are talking more than 1 million people who are affected by social security aggregation—the aggregation of the contributions they make to their retirement pension. That is a fundamental right that we all moved across the Channel with.

I would also add that British citizens moving abroad are mobile. It is not so much that a British citizen moves from the UK to one country. We are mobile citizens, and many people have worked in three or four different countries. That is a complicated aggregation scenario. It is entirely possible, due to the rules in individual countries about minimum contribution periods—in Italy, you have to contribute for 20 years before you can receive a pension; in the UK, as you know, it is 10; in France, it is 10; and so on—that without co-ordination, people could work an entire working life and not receive any state pension.

[Jack Brereton]

Q You mentioned the variable way in which different countries in the EU are treating the rights of British citizens living in the EU. I ask you a similar question to that which I asked one of our other witnesses earlier. Do you think that different countries, the EU, and the British Government have approached this from a different perspective?

Jeremy Morgan: Yes. In so far as we are talking about Britain versus 27 or 26 different countries, clearly the British Government’s aim has been to get the withdrawal agreement through—to get Brexit—and almost anything that has to be done in order to achieve that, they will do. Obviously, there are difficulties at the moment. The other countries are more concerned with specific national issues. I do not think you can generalise.

Kalba Meadows: I do not think you can. I agree with what Jeremy says.

Jeremy Morgan: The French are terribly concerned, for example, that people who are not French citizens should not be involved in public administration. In Italy, they are much more concerned about families. That is the Italians and the French for you.

[Jack Brereton]

Q Do you think there has been a willingness to trade off some of those rights?

Jeremy Morgan: It is very hard to say.

Kalba Meadows: I do not think it is so much a trade-off as the fact that in each country you are coming from an entirely different culture, and the starting point is different. The one thing they have in common is a desire to protect their citizens in the UK. That is a shared point of view.

[Stuart C. McDonald]

Q Based on what you have said so far, what we should be doing is, first, encouraging the Government to seek a ring-fenced agreement on citizens’ rights and, secondly, setting out in this Committee strong rights for EU nationals in the UK in the Bill, whether there is a no-deal Brexit or a managed withdrawal, and, because of reciprocity, you will then see stronger rights for UK nationals across Europe.

Kalba Meadows: Yes.