Non-UK Armed Forces Personnel: Immigration Requirements

Johnny Mercer Excerpts

Wednesday 5th January 2022 Westminster Hall

[Dan Jarvis]

My hon. Friend is exactly right. These people have come here in good faith. They have risked all in the service of our country. They have exposed themselves to extraordinary risks. This is not the way to repay the extraordinary service they have offered our country. I hope that the Government in the near future will take the opportunity to close what is essentially a loophole. It would be relatively inexpensive to do so. Morally, it is the right thing to do.

I think it is only fair to say that I am aware of some of the efforts that are being made to update guidance and to increase the length of time that an application can be made in advance of discharge, as well as the ongoing work with the Joining Forces credit union, but we must ensure that the experiences of Taitusi, Filimone and countless others are not repeated.

It is also simply wrong for the Government to profit off the backs of the service of those men and women. Indefinite leave to remain costs each person who applies £2,389. However, the latest available Government data shows that the estimated cost of each application is only £243. That means that a soldier with a partner and two children will be asked to cough up nearly £10,000, £8,500 of which goes straight into the Treasury coffers.

In Afghanistan, foreign and Commonwealth-born soldiers, just like their UK-born comrades, spent months in check points in the blistering heat, surviving on minimal sleep. They were responsible for clearing safe routes with metal detectors. They were shot at while patrolling with back-breaking loads. All the while, families at home were hoping never to receive a knock at the door, though tragically some of them did. They have paid their dues 100 times over. Aged just 19, Pa Njie, a Gambian-born member of the Cheshires, was struck by an improvised explosive device and suffered terrible, life-changing injuries. Pa lost two limbs in the service of our country. Seemingly, that is not enough for the Home Office, which still wants its two grand.

It is worth remembering that this bill lands on the doorstep right at the moment that the person is transitioning to civilian life. It is much needed cash at a crucial time that could have gone on a deposit for a home or an education course.

Whenever this campaign is raised of late, Ministers are quick to highlight the consultation that was launched back in May, which is worth examining further. The response to it, I might add, is already more than three months overdue.

[Johnny Mercer (Plymouth, Moor View) (Con)]

I congratulate the hon Member on securing the debate, in which I hope to be called to speak. The consultation has been leaned on very heavily by the Government. Unfortunately for them, I was in the Department when the consultation started, so I know how it came about and what it is about, which is essentially people serving around 12 years before they get a right to remain. Does he agree that that is extraordinarily stingy to our foreign and Commonwealth personnel and totally out of sync with requirements around indefinite leave to remain, and that a serious, hard look needs to be taken at it if we are to tackle this problem?

[Dan Jarvis]

I am grateful to the hon. and gallant Member for that intervention. He is exactly right: it is, at best, very stingy. I recall that in the debate before Christmas he said that the 12-year threshold

“was plucked out of the air.”—[Official Report, 7 December 2021; Vol. 705, c. 300.]

Whether it was, or whether it was designed to affect the minimum number of people possible, it cannot be the right way forward. We should also reflect on the fact that in addition to the 12-year proposal there was nothing for families or for the unknown number of veterans currently living in limbo, who have effectively been thrown under a bus. This was the Government’s chance to right a historical wrong; instead they chose to introduce something that is, as he just outlined, virtually pointless. Only meaningful reform will deliver the justice that our veterans and their families deserve.

Whatever metric is used, I think—at least, I hope—that the Minister is fully aware that the bar has been set so high that practically no one will benefit as a consequence. Surely a fairer option would be to look at the benchmarks at which service personnel qualify for settlement and citizenship: four and five years respectively. When Government Whips were convincing their MPs to vote down new clause 52, which the hon. Member for Plymouth, Moor View (Johnny Mercer) and I tabled to the Nationality and Borders Bill last month, one of the arguments provided was around a lack of fairness.

That brings me neatly to the serious matter of consideration of families, because if we want to debate a lack of fairness, we should look no further than the minimum income requirement that our service personnel must meet before they can bring their loved ones to the UK. That is a cruel policy that has resulted in members of the armed forces either leaving their families thousands of miles away or taking second jobs to reach the affordability criteria. In return for their protecting our national security, the Government rip their families apart. That practice is immoral, indefensible and inexcusable.

The Government have committed to making the UK the best country in the world to be a veteran; that is a noble ambition, on which we can all unite. However, there is no better place to begin than with the treatment of our service people who are foreign or Commonwealth-born. Our campaign has huge support right across the board from the Royal British Legion, Help for Heroes, all Opposition MPs, many Conservative MPs, England rugby stars, and many more people and organisations besides. We do not need primary legislation; Ministers can fix this problem with the stroke of a pen by updating regulations. They just have to show some of their stated ambition.

We are not asking for the world; all we are asking for is a fair deal for service personnel, for families to be treated with dignity, and justice for those veterans who are living in limbo. That is because no matter where someone comes from or whatever their background is, once they choose to put on a uniform and protect our country, they have made a life-changing commitment. It should shame all of us that our people are being treated with such little respect.

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[Johnny Mercer (Plymouth, Moor View) (Con)]

It is a delight, Mr Hollobone, to serve under your chairmanship today.

I will certainly not take up eight minutes; I look forward to hearing what the Minister will say on this issue and I think that almost everything that can be said on this subject has been said. Nevertheless, I pay tribute to the hon. Member for Barnsley Central (Dan Jarvis) for his work on this issue over many years. It is one of the intricacies of this place that if one is not in government, such work can be pretty hard going at times, but he has striven over many years and through many debates on this issue, and I pay tribute to his relentless focus on it, not for himself but for the foreign and Commonwealth service personnel he served with, whom he has identified as suffering a serious injustice.

I will address just a couple of points before giving the floor to other people. The first is about the Government’s current position on this matter. For the life of me, I cannot understand why the Government do not do what we are asking them to do. It would not cost a lot of money, as the hon. Gentleman has identified. In the Committee considering the Armed Forces Act 2021, we worked with the Home Office to establish what the cost would be—the cost, not the profit—of taking this action for everyone who left the military in 2020. The cost was £30,000. When we consider what the Government and individual Ministers will spend on their own policies or whatever it may be, I cannot for the life of me understand why they do not do this.

Some of the reasons that Conservative colleagues gave in writing after that campaign to justify their vote against it—because this action was supported by everybody in this country, less the Conservative party, which breaks my heart a bit, considering how the Conservative party dresses itself up as the party of the armed forces—were just insane. They treated the hon. Gentleman and I as if we had just sailed up the Thames in a mess tin and had no idea what we were talking about. Clearly, if this action was in train and was about to happen, we would not waste our time conducting a campaign on it, including in Parliament, or finding out what can and cannot be done. But clearly it is not happening.

There was a consultation. Everybody in government knows that people have 12 weeks to respond to a consultation, but that has been missed as the consultation period finished 24 weeks ago and nothing has come out. So please do not tell me that there is a consultation and this will all be all right. The consultation itself was an absolute dog’s dinner.

I know how the figure of 12 years before people can settle came about; it was because one of the Secretaries of State went on a visit and met a Fijian chef, who said, “Yes, 12 years. Don’t let them come in under 12 years.” No work went into it at all. The figure should be around the same as the indefinite leave to remain requirements of four or five years, depending on status, which is in keeping with our peer nations.

The idea of splitting up families is atrocious. The idea is that at the end of a person’s service, they send their family back, like a sailor from Trinidad I met last year who was sending his wife and two kids back, so that he could work here and earn the money. We do not do that; we do not split families up. That is not the way we treat people in this country.

I urge Ministers and colleagues to get over the personalities involved here. I know that when some of us get campaigning on an issue it can be quite brutal and people do not want to be seen to go with it. I totally get that, but I urge hon. Members to be as professional as they can be, to park all that stuff and to think about individuals such as Pa, who was mentioned by the hon. Member for Barnsley Central, who lost two legs in Afghanistan. He is still in court fighting visa fees to stay in this country. That is appalling and shames each and every one of us in this place, not just those of us with military connections.

I cannot understand how veterans in this House, who broke bread with foreign and Commonwealth service personnel on operations, can come here and vote for the Government making an 80% profit out of service personnel who want a visa to stay in the UK. I cannot reconcile how they could possibly do that. There will be another chance to get this right, because the hon. Member for Barnsley Central and I will work with all the groups again to introduce a similar amendment. We have to right this wrong.

There is no point waiting further for consultations or excuses. The time is now, it does not cost a lot of money and it is a moral purpose that is not about politics. It is about the morality of how we treat people who serve in this nation’s military. We say that we want this to be the best country in the world to be a veteran, which is a noble ambition that I admire and that nobody would want more than me—I would love it because I could stop banging on about this stuff—but we are a million miles away from that.

If we were to ask individuals who have these problems, such as Pa, “Does this feel like the best country in the world in which to be a veteran?”, what would they say? That is how we will judge this, not by what we do here—announcing wonderful policies, having a consultation and saying further action is unnecessary because we have it all in hand. Go and ask Pa, or the foreign and Commonwealth soldier mentioned earlier who was given a £30,000 bill after using the NHS, “Does this feel like the best country in the world to be a veteran?”, and hon. Members might wake up and realise how much we have to do.

I look forward to the response from my hon. Friend the Minister, and he is a friend. I will not be indiscrete, but I know people’s views on this matter. Others have come up to me after debates—not this Minister—and said, “Johnny, I’m with you. This is the right thing do, but I want something for my town or city.” What does that do for the individual service personnel we have mentioned? Nothing. It is a coward’s way to do politics. We know the right thing to do. We need to get on and do it, and move on to other issues.

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[The Parliamentary Under-Secretary of State for the Home Department (Kevin Foster)]

It is a pleasure to serve under your chairmanship, Mr Hollobone. I note your instruction to make sure there is at least three minutes left at the end for the hon. Member for Barnsley Central (Dan Jarvis). I thank him for securing the debate, and I thank all Members for their contributions. Although there may not have been a large quantity of contributions, there was certainly quality in the speeches that were made. It is good for us again to have an opportunity to discuss this issue.

The Government strongly value every member of our outstanding armed forces, and we are grateful and humbled when non-UK nationals choose to serve our country. It is right that they are rewarded for their bravery and commitment, which is why there are already several measures in place to support them both during and after their service, which I will outline in a few moments. I will briefly touch on some of the cases that have been mentioned. I hope Members will appreciate why I will not go into individual immigration records in a public forum, but in relation to the eight Fijian veterans, I can confirm that we have engaged directly with their legal representatives and they have all now regularised their immigration status here in the United Kingdom.

I will also say—this is a message that I give out regularly in relation to the settlement scheme for European economic area nationals who may have missed the deadline of 30 June last year—that if an armed forces veteran who is currently in the UK does not have regular immigration status, we genuinely encourage them to get in touch with the Home Office today. If they do not want to get in touch with us directly—if they have concerns about doing that—then I am sure that I speak for everyone present when I say that they can get in touch with their local Member of Parliament and ask them to get in touch with us.

Unless someone has committed serious or persistent criminal offences, our focus will be on supporting them to acquire status; we will not default to enforcement action. I hope people will have seen that in the way we dealt with vulnerable EEA nationals who missed the deadline last year. That is the approach that we will look to adopt with an armed forces veteran, unless, as I say, serious or persistent criminal offences have been committed. I am sure colleagues will appreciate why I add that caveat.

It should be noted that special immigration rules already apply to non-UK armed forces personnel, under which, as Members have referenced, they are granted full exemption from immigration control status for the duration of their service to allow them to come and go without restriction. They are free from any requirements to make visa applications or pay any fees while they serve, unlike almost every other category of person coming to work in the UK. On discharge, those who have completed at least four years’ service or have been medically discharged as a result of their service can choose to apply immediately for indefinite leave to remain in the UK. Non-UK armed forces personnel applying for themselves do not have to meet an income requirement, be sponsored by an employer, or meet any of the other requirements regarding skills, knowledge of the English language or knowledge of life in the UK that others applying for certain statuses may be familiar with.

It is worth highlighting not just the issue around immigration status, but the provisions that apply with respect to British citizenship. On completion of five years’ service, Commonwealth citizens can choose to naturalise as British citizens while they are still serving. For clarity, as touched on by the hon. Member for Strangford (Jim Shannon), they can use their time both in the UK and on overseas assignments towards the five-year UK residency criterion—a concession that is not offered to any other employment group. For reasons that will hopefully be obvious to Members present, applying to become a British citizen while serving removes any need to make an application for settlement.

Those provisions sit alongside the specific citizenship provisions for children born to serving armed forces personnel. Again, for clarity, there is a specific carve-out in relation to the rules. Members will be familiar with the concept that if a child is born in the UK and one of their parents is a British citizen or is permanently settled in the UK, they will become a British citizen automatically at birth. That goes further for members of the armed forces: a child born in the UK or qualifying territories acquires British citizenship automatically if, at the time of their birth, their mother or father is a member of the armed forces. It does not need to be both parents; it can be either.

Additionally, any individual born in the UK or qualifying territories on or after 13 January 2010 whose mother or father becomes a member of the armed forces while they are a minor is entitled to register as a British citizen. Finally, a person born outside the UK whose mother or father is a member of the armed forces at the time of their birth can also register as a British citizen. I hope that brings some clarity about the position of children born while someone is serving in the forces.

[Johnny Mercer]

I pay tribute to my hon. Friend, because I know he cares deeply about this issue. I have listened carefully to all the things he has said, but would he not agree that they are extraordinarily small beer for foreign and Commonwealth service personnel? One of the points that was raised was that if they come and serve in the military and they go on deployment to Afghanistan, we will not stop the clock. That is extraordinary. Of course we would never stop the clock—they are serving in the British Army. Would the Minister accept that, while there are small carve-outs for individuals, if we look at the greater picture, they are incredibly small beer? That is why we need to deal with the visa fees issue.

[Kevin Foster]

I would not class the automatic granting of UK nationality as small beer. The provisions I have just read out apply regardless of the nationality of the parent. Both parents can be non-UK nationals, and only one needs to be a serving member of the armed forces for their child born in the UK to automatically become a British citizen. I am struggling to think of any other such provision. The child becomes a citizen at birth, so all they need to do is apply for a passport. They are a British citizen. There is no settlement fee and, obviously, there is no visa fee for someone who is a UK national at birth. That is a large, real impact for children born to members of the armed forces, and it is unlike virtually any other walk of life, where, unless a parent already has indefinite leave to remain or one of the parents is a UK national, their children do not automatically become British. Of course, they may be naturalised later, when the parents naturalise themselves. I would not describe that provision as particularly small beer. It is quite long standing, and it is deliberately generous to children born to service personnel.

Family members of armed forces personnel enter the UK on a five-year limited leave to enter visa, whereas their civilian counterparts, such as those coming in under the family routes, are usually granted a 30-month visa, which they must then renew to complete the qualifying period. The family members of armed forces personnel can apply for settlement straightaway at the end of the five years, saving them the cost of making multiple applications. Again, unlike their civilian counterparts, they can count time overseas on accompanied assignments towards the five-year UK residency criterion.

We have several measures in place to support non-UK armed forces personnel, such as the particularly unique provision regarding their children and British citizenship that I have already touched on. We recognise their contribution and sacrifice and are determined to do more, hence the Home Office and Ministry of Defence ran a joint public consultation last year regarding a policy proposal to waive settlement fees for certain non-UK service personnel in Her Majesty’s armed forces. I was pleased to work on that with my hon. Friend the Member for Plymouth, Moor View (Johnny Mercer). The results of the consultation have now been analysed. The Government will publish our response shortly and make any associated fee changes through fees regulations at the earliest opportunity afterwards. While I am not in a position to confirm the final policy offer, I hope that provides some reassurance that the Government recognise the issue, have sought views from those affected on how best to address it, and will shortly announce our plans to do so.

There has been some focus in the debate on the proposal in the consultation to offer fee waivers to those who have served for a minimum of 12 years. That is in line with a service person’s initial engagement period and takes account of the investment in their skills and training.

[Johnny Mercer]

Will the Minister give way?

[Kevin Foster]

In a moment. I acknowledge the strong representations made in the debate—I suspect I am about to get some more—as well as during the passage of the Nationality and Borders Bill and in response to the consultation, recommending that that threshold should be reduced. As I say, we will publish our response to the consultation shortly, and that will set out the final policy.

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[Johnny Mercer]

I have to correct one of those pieces of information on the 12-year engagement point. I know it is not the Minister’s fault, as it comes from the MOD. This is a very recent policy and does not actually apply to anyone who has served for a long time. The idea that someone serves for 12 years is rubbish; they can leave after four or five years. I am afraid that the 12-year engagement point is a huge red herring. We have to be honest in this debate. I know it is definitely not the Home Office’s fault, but the idea that our foreign comrades sign up for 12 years and do not leave is garbage. I repeat that this is not the Minister’s fault at all.

[Kevin Foster]

My hon. Friend makes his point strongly on the record. I will move on to the treatment of family members of non-UK service personnel and particularly whether any fee waivers should apply to them as well as to the principal applicant. As I said, I am not in a position to announce the revised policy, but the consultation did not include proposals to waive fees for family members. Offering fee waivers to family members of non-UK service personnel would put them in a more favourable position than UK nationals serving in the armed forces. While we could debate what the provisions for family members should be, we do not believe it is sensible to have a difference in this area, or for it to be an advantage to serve in the armed forces as a non-UK national rather than as a UK national.

Colleagues will be aware that the minimum income requirement is standard across immigration routes for settled persons wishing to sponsor family members and is mostly set at levels at which people would not generally be eligible for income-related benefits. Most armed forces personnel, regardless of their nationality, are single when they enlist. The salary in all three services once basic training is completed would enable them to sponsor a partner to come to, or remain in, the UK. Where personnel have children who are subject to immigration control, noting the provisions I outlined earlier, we recognise that it may take longer for junior-ranked personnel to meet the higher thresholds that apply. That is why the Home Secretary agrees with the recommendations of the review by my hon. Friend the Member for South West Bedfordshire (Andrew Selous), “Living in our shoes”, published in June 2020, and has committed to a medium-term review of the impact of the minimum income requirement on armed forces personnel and their families.

In previous debates, the issue of Hong Kong Military Service Corps veterans has been raised. It is probably worth putting on the record again what I confirmed during the passage of the Nationality and Borders Bill. We have identified a potential solution to this issue and are currently investigating proposals that could see that cohort treated similarly to other non-UK service personnel with potential links to the former colony. That would be in addition to other pathways that they may already be eligible for, such as the British national overseas visa, which provides a path to settlement. There is considerable work to be done to fully scope the ramifications and impacts of this policy. However, I aim to provide further details to the House later this year.

Let me again offer my thanks to the hon. Member for Barnsley Central for securing this debate. As we have seen today and in the debate last month on the proposed amendment to the Nationality and Borders Bill, this issue rightly arouses strong feelings among individual Members and across the House—understandably so, given that it covers those who have served our nation. The hon. Members present are committed and passionate advocates for this topic, and I commend them and others for raising this hugely important issue. The discussion that we have had today has exposed the significant and understandable strength of feeling that there is about it.

[Johnny Mercer]

Will my hon. Friend take one last intervention?

[Kevin Foster]

Go on, then.

[Johnny Mercer]

I am sorry; I am only making up for the fact that there are not many people here. If we applied the consultation proposal retrospectively to 2020, how many foreign and Commonwealth service personnel would benefit from it, as a percentage? Does my hon. Friend know? I am trying desperately not to catch him out, because I think that we did this work together.

[Kevin Foster]

The Government will publish their response to the consultation shortly.