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

Kevin Foster Excerpts

2nd reading & 2nd reading: House of Commons & Money resolution & Money resolution: House of Commons & Programme motion & Programme motion: House of Commons & Ways and Means resolution & Ways and Means resolution: House of Commons
Monday 18th May 2020 Commons Chamber

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

It is a pleasure to formally welcome the new shadow immigration Minister to her post; I have not had the chance to do so before at the Dispatch Box.

The breadth of views expressed by Members today clearly demonstrates how important an issue this is, not only to our constituents but personally. Given the unusual circumstances in which we meet, I will not have time to give a detailed response to each point raised, but will seek to respond to the broad themes that have been brought out in the debate.

The Bill is before the House not only to deliver on our manifesto pledges, but to lay the framework for our new immigration system, which will be fairer because we will treat people from every part of the world equally, while respecting our historic links with Ireland and the Belfast agreement, and firmer, because we will have control of our own borders from 1 January and all migration policy will be in the hands of this Parliament. It will be skills led, because the system will be based on the skills, talents and qualifications that people can bring to this country, not two radically different systems based on where someone’s passport comes from.

Let us be clear: this is a framework Bill, not an immigration shopping list. In response to some comments, especially from those who wish to build an economic version of Hadrian’s wall, I emphasise that this Bill sets up the framework for a single, global points-based migration system, with the rights of Irish citizens protected and ensuring the ability of Ministers to respond to any agreement on social security co-ordination.

The detail of our migration rules will continue to be set in secondary legislation, to ensure that they remain flexible and able to respond to changing situations but always based on the key policy principles I have outlined. The reaction to the coronavirus emergency shows why that is necessary. Imagine our having to pass primary legislation to amend visa end dates, automatically renew NHS workers’ visas, grant waivers to in-country route-swapping conditions or allow tier 4 sponsors to move courses online. Hence this Bill, in common with those on this subject that came before it, does not replicate the immigration rules in statutory form, and neither should the House regret its not doing so.

We have already moved to create the first part of our new migration system with the creation of our global talent route. I saw at first hand at Glasgow University what this could result in and the strong offer it presents, clearing the path for some of humanity’s most complex problems, such as the fight against malaria, to be solved by teams recruited on a global basis and based here in our United Kingdom. The new graduate route, which will be introduced next summer, will help to retain some of the brightest minds coming out of our universities, giving a simple path to future residence and settlement. As our universities see an increasing number of international students arrive to study here, we know that more will be inspired to make their life and career in vibrant locations such as Glasgow, Belfast, Exeter, Cardiff and Coventry. Our immigration system should allow them to do so.

I hear the frustrations of those who see our migration and humanitarian protection system being abused by those who engage in human trafficking—as highlighted well by my hon. Friends the Members for Dover (Mrs Elphicke) and for Hastings and Rye (Sally-Ann Hart) —and the risks being run by those using small boats to cross the channel. A key part of ensuring a fairer system is to tackle that type of behaviour. My hon. Friend the Minister for Immigration Compliance and the Courts is leading work on that, which is benefiting from the input of my hon. Friends.

The Migration Advisory Committee report earlier this year provided a strong and evidence-based view for our future points-based migration system. We accepted its key recommendations: a reduction in the general salary threshold for the key skilled worker visa from £30,000 to £25,600; moving the skills threshold from degree to A-level, to ensure that we include those with significant skills levels, such as senior carers; and tradable points, with a salary floor of £20,480 for jobs on the shortage occupation list or where significant potential is shown by holding a relevant STEM-based PhD. We are working hard to bring the new system into effect, and I thank the teams in the Home Office who have continued doing this in the extraordinary circumstances we have found ourselves in over recent weeks.

We will continue to work closely with the Migration Advisory Committee and its interim chair, Professor Brian Bell. My right hon. Friend the Home Secretary has already commissioned the Migration Advisory Committee to advise on the future shortage occupation list. Its call for evidence has now been issued, and that will provide an opportunity to look at the skills needs of a range of sectors that Members have highlighted today. I encourage all businesses to take part and have their voice heard; no one should allow themselves to be silenced. Several Members have been keen to highlight groups with whom I can speak about this. For example, I look forward to a video conference with seafood businesses in north-east Scotland arranged by my hon. Friend the Member for Banff and Buchan (David Duguid). I know he shares my passion for ensuring that the new migration system serves our whole Union and the skills needs of Scottish businesses, rather than the political aims of Scotland’s separatists.

Talking of serving the needs of our nation, no organisation has done that more than our NHS and social care services over recent weeks. Our new system will not just allow but actively welcome a range of health professionals to the United Kingdom. This will be via not only the points-based system being based on national salary scales for roles such as doctors, nurses and physiotherapists, but an NHS visa, which includes discounted fees and fast-track application processes for those with a job offer from our NHS or for those providing services to it. This process will build on the dedicated team that the Home Secretary has already established in UKVI to process applications from those with NHS job offers. Our social care sector will benefit from simpler processes to recruit qualified medical staff and key roles such as senior carers on a global basis.

One area that has been regularly queried in the debate is our acceptance of the MAC’s recommendation that there should be no general route for employers to seek to employ temporary or permanent employees on the legal minimum wage with limited training and no requirement to speak a basic level of English. I gently say to Members that if the lesson they have taken from the events of the last two months is that paying the legal minimum to those working in social care who migrate to the UK from low-pay economies is the right approach, they have drawn the wrong conclusion. Similarly, those who think that the migration system is the go-to option for recruitment issues in social care, rather than creating career paths and increasing the value of such roles, should read the MAC’s specific rejection of this.

No one can deny the economic impact that the measures necessary to deal with the coronavirus will have. Many of our friends and neighbours will need to find new employment opportunities, and it is therefore vital that our migration system aligns with this goal, rather than providing an alternative to it. I have welcomed speaking to my hon. Friend the employment Minister about how we can ensure that our goals align and that those seeing migration as their first port of call are instead steered to the efforts being made to get UK-based workers back into employment and to the Disability Confident scheme, which helps to get unique talents into the workplace. There will still be some flexibility. For example, there is provision for the further expansion of our youth mobility schemes, through which 20,000 young people come to the UK for a period of work and travel each year, along with the adult dependants of those who come as skilled workers, who can also access the employment market. However, we will not create a minimum wage general migration route.

Alongside creating our new points-based global migration system, we are also taking the chance to work on a long overdue simplification of the immigration rules. I am grateful to the Law Commission for its thoughts on this area of work, and we will take most of them forward as we create the new system. Many will not be headline-grabbers but changes that will make it easier for those who need to use our immigration system to both understand the requirements and to comply with them. This will sit alongside moves such as the abolition of the resident labour market test, which will make it easier for employers to recruit skilled labour, and will remove some of the bureaucracy and time associated with doing so.

Finally, it was predictable that some would use this debate to re-fight the battles of Brexit, despite the clear result in the recent general election. The Bill delivers one of the key commitments that the Government made: a single global migration system. However, we are also delivering on our pledge to protect those who have moved here and made their life here in good faith under the current arrangements. The European settlement scheme is the largest documentation of immigration status in UK history. More than 3.5 million applications have been received, with more than 3 million decisions made, and only a tiny number of refusals by comparison. I am afraid that those calling for systems where rights are granted but not recorded do not seem to have learned the lessons of the past. The European settlement scheme means those entitled can prove their status easily for the rest of their lifetimes, while also ensuring that those who arrive in years to come cannot abuse the scheme’s provisions.

We recognise that immigration is vital to the social, cultural and economic life of this country. The new system will aim to create global equality of opportunity, giving everyone the same chance to live and work in this country. The Bill is the first step in ending free movement, establishing a fair and equal immigration system and upholding the scientific and commercial excellence of our country. Above all, it will help us to build a better future for this country and its people as we rebuild after the impact of covid-19. I therefore commend the Bill to the House.

[Mr Deputy Speaker (Mr Nigel Evans)]

Before I put the Question, I confirm that my final determination is that the Question on Second Reading should be decided by remote Division. There is therefore no need for me to collect the voices, or for those present in the Chamber to shout Aye or No.

Question put, That the Bill be now read a Second time.

The House proceeded to a remote Division.

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

Kevin Foster Excerpts

Committee stage & Committee Debate: 1st sitting: House of Commons
Tuesday 9th June 2020 Public Bill Committees

[The Chair]

Before we begin, I have a few preliminary points. Members should switch off any electronic devices or switch them to silent. As in all Bill Committees, tea and coffee are not allowed during sittings. Obviously, I must stress the importance of social distancing in the Committee Room. I will suspend proceedings if at any point I am not satisfied that advice on public health is being observed.

The Hansard reporters would be most grateful if Members could email any electronic copies of their speaking notes to [e-mail].

We will first consider the programme motion. We will then consider a motion to enable the reporting of written evidence for publication and a motion to allow us to deliberate in private about our questions before the evidence session. If there are any questions about our unusual procedure because of social distancing during that session, we can deal with them then. In view of the limited time available, I hope we can take these matters without too much debate. At 11 o’clock, there will be a minute’s silence in memory of the death of George Floyd.

I call the Minister to move the programme motion, which was agreed at the Programming Sub-Committee yesterday.

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

I beg to move,

That—

(1) the Committee shall (in addition to its first meeting at 9.25am on Tuesday 9 June meet—

(a) at 2.00pm on Tuesday 9 June;

(b) at 11.30am and 2.00pm on Thursday 11 June;

(c) at 9.25am and 2.00pm on Tuesday 16 June;

(d) at 11.30am and 2.00pm on Thursday 18 June;

(e) at 9.25am and 2.00pm on Tuesday 23 June;

(2) the Committee shall hear oral evidence in accordance with the following Table:

[The Chair]

Copies of written evidence that the Committee receives will be made available in the Committee Room.

Resolved,

That, at this and any subsequent meeting at which oral evidence is to be heard, the Committee shall sit in private until the witnesses are admitted.—(Kevin Foster.)

--- Later in debate ---

[The Chair]

Thank you. Richard Burge, please introduce yourself.

Richard Burge: Thank you very much. My name is Richard Burge. I am the chief executive—fairly recent—of the London Chamber of Commerce and Industry.

Martin McTague: I am Martin McTague. I am the chair of policy and advocacy for the FSB in the UK.

[Kevin Foster]

Q I will start with a slightly more open question to the two witnesses. How do you see small businesses adapting to the new system that we have proposed?

Richard Burge: With difficulty. The obvious difficulty they have is that they are surrounded by chaos at the moment. Many small businesses have furloughed a large number of members of staff, or they are operating on their own. They have only so much bandwidth, so this will be hard work for them, particularly as they do not know what the rules will be. If they employ EU citizens, their concern is that they will now be introduced to the world of having to register themselves and get themselves licensed, which, like customs documentation, is a completely new world for them, and they have six months to do it.

Martin McTague: Sorry, I could not hear that question very well. Could you repeat it? You are very echoey and quite distant.

[The Chair]

Just before you do, Minister, it would be helpful if when asking questions, Members said who they were directing the question to.

[Kevin Foster]

Q Certainly, Mr Stringer. The question was an open one, directed at both witnesses, and it was basically about how they see small businesses adapting to the proposed new immigration system.

Martin McTague: I just about got that; I think it was a question about small businesses’ experience of immigration. The reality is that 95% of small businesses have absolutely no experience of dealing with any kind of visa system, and the system has been largely designed for larger businesses with reasonably sophisticated HR resources. We have found that the biggest concentration of issues is to do with mid-skilled occupations; in other words, the debate tends to be very binary. It either refers to high-skilled and very sophisticated employment requirements or completely low-skilled ones, but there are a lot of mid-skilled positions that fall within the £20,000 to £30,000 bracket, and those are the ones that cause the most problems for small businesses in the UK.

[Kevin Foster]

Q I would like to ask two follow-up questions, one to each witness, if that is acceptable. My first question is to Mr McTague, given what he has just said about mid-skilled workers being a particular issue. Does he see the skill level of skilled workers’ being changed to RQF3—that is, A-levels—as helping to address that issue?

Martin McTague: I assume that was to me, was it?

[Kevin Foster]

My question to Mr Burgh is about the fact that he talked about the process of sponsorship and becoming licensed. He may be aware that the Home Office is looking to streamline that system. Is there a particular change, or changes, he thinks we could make to the sponsorship licensing system that would help address some of the concerns he outlined?

Martin McTague: [Inaudible] it is welcome. It is a change that we were keen to see, and there has been a welcome change in the Government’s approach.

Richard Burge: To add to that, first of all, I have great admiration for the Home Office team working on this. I have worked for Matthew Rycroft before, in the Foreign Office, and he is one of the most talented managers in the public service. I think umbrella licensing is a good idea: it has good precedents, and it would create a huge relief for small businesses if they felt they could go to an organisation that had the ability to provide umbrella licensing. It would provide reassurance to the Home Office and a workable solution for small businesses, and we would be happy to be part of that process.

[Holly Lynch (Halifax) (Lab)]

Q As free movement comes to an end with this Bill and we transition to the minimum income requirement of £25,600, how have your members responded to that minimum income threshold?

Richard Burge: In two ways. One is relief that the threshold was lowered; it is now a much more realistic threshold. I have to say, though, that it is going to be a lot more workable within London than it is for my colleagues who run chambers in other parts of the country. A threshold of £25,600 is quite high in different parts of the UK, given the wage levels there, so while I think it is workable in London—not ideal, but workable—I also think we concentrate on income too much as an indicator of value, rather than skills, and that in parts of the country, the threshold is still probably too high.

--- Later in debate ---

[The Chair]

Good morning, Mr Fell. The Bill Committee will now hear your oral evidence. I am sorry about the technical hitches; you will be on your own, not with Make UK.

Thank you very much for agreeing to give evidence today. If you would like to briefly introduce yourself, we can move straight to questions. We have about 10 minutes.

Matthew Fell: I am Matthew Fell, chief policy director at the CBI.

[Kevin Foster]

Q I will ask one question, because of constraints of time. How do you see your members working with the proposed new migration system?

Matthew Fell: I think our members completely understand that free movement of people is ending. Business gets that, and it is ready to phase into a new immigration system. I think, with the proposed approach of a points-based system, it is entirely possible to design a system that works for business. There are many positives in it so far—the headline salary threshold changes that have been announced and the commitment to streamline and improve the system are all positives—but I would say that there are perhaps three areas of concern for our members at the moment.

One concern is the absence of any route at all below level 3, which will prove challenging for the care, hospitality and logistics sectors and so on. The second, from the Government’s perspective, is introducing this with a phased approach; I can perfectly see where they are coming from, but it means that business will be left with a reasonably cumbersome system from the off, with a promise of improvements to come. The third is that we are getting very close to the deadline for the system being introduced, and business is still looking for further clarity, time to prepare and assurances that the system will be ready in time. Those are the concerns, against a backdrop of an effort to really make this work and lean into it.

[Holly Lynch (Halifax) (Lab)]

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.

--- Later in debate ---

[The Chair]

Welcome to the Committee. I apologise for the difficulties we had before. You will be on your own. First, can you introduce yourself to the Committee for the record, and then I will ask the Minister to ask you a question?

Tim Thomas: My name is Tim Thomas. I work for Make UK, the manufacturers’ organisation. I am Make UK’s director of employment and skills policy, so I cover all work-related issues and a few political issues, including immigration policy.

[Kevin Foster]

Q Mr Thomas, how do you see the manufacturing sector working with the proposed new migration system?

Tim Thomas: Sorry, could you just repeat that? It was a bit echoey. Apologies for the line.

[Kevin Foster]

I will say it slowly; it will sound weird. How do you see the manufacturing sector working with the new system?

Tim Thomas: In terms of how the manufacturing sector will work with the new system, it will be a considerable challenge to cope with the end of free movement. Around 95% of our members employ an EU worker and about 5% employ a non-EU worker, so the majority of Make UK members do not currently interface with the tier 2 non-EU migration system. There will be a considerable change for manufacturers’ recruitment practices with the implementation of the points system.

It is fair to say that the changes to the proposed points-based system for manufacturers will ease the route. The reduction in the qualification level from level 6 to level 3 and the reduction in the salary threshold will make things easier for manufacturers than they would be. However, manufacturing is a global business; about half of manufacturing exports go to the European Union, and they cannot export their British-manufactured goods to the EU without an exchange of people. People, and the cross-fertilisation of people between the UK and the EU, go hand in hand with trade in manufactured goods. There is a strong connection with the EU and global trade in the manufacturing sector, and the ability to recruit people from outside the UK is vital to that trade.

[Holly Lynch]

Q As free movement comes to an end, Mr Thomas, how satisfied are you that the Migration Advisory Committee and the shortage occupation list understand the requirements of the manufacturing sector and are able both to respond to potential shortages in skills and to understand the variety in salaries paid in your sector?

Tim Thomas: At Make UK, we have responded over several years to calls for evidence from the Migration Advisory Committee, and we are preparing our response to the current call for evidence. If I may make one point before I come to your question, the call for evidence from the MAC has a very short window for Make UK and other organisations to respond. That is because the points-based system is being implemented on a very truncated timeline. In gathering the evidence for the MAC, Make UK and other organisations face a stiff challenge in ensuring that our response is evidence-based and provides a realistic forward look at the manufacturing sector and the jobs we will need in the future.

As for how realistic the MAC can be in its work and how realistic we can be, covid-19, the changes to the manufacturing sector and the difficulties it is in have presented a challenge in showing the MAC the true state of what occupations are in shortage in our sector at the moment. The manufacturing sector systemically suffers from long-term skills shortages—we are no different from any other western European economy in that regard—and that is not because manufacturers do not train. About 75% of manufacturers have apprenticeship programmes, and Make UK is an apprenticeship provider. We are investing in training the next generation of talent, but the fact is that there are certain skills, including digital skills, that are not available in the UK, and we need them to make sure the manufacturing sector is internationally competitive and productive. In terms of the work of the MAC, it needs to take a realistic view of what the UK labour market can provide, given those skills shortages and how long it will take it to adjust at the end of free movement, given that those skills can be brought in through the points-based system.

There are some key elements of the manufacturing sector for which workers tend to come from the European Union. One is new green technology. We all support the move away from an economy in which electricity generation is carbon-based, towards clean energy. Clean energy is something that our members are investing large amounts of resource in. A lot of those skills, simply because the technology has been deployed for longer in the European Union, exist in, for example, Germany and Denmark to a greater extent than they exist in the UK. Accessing those green skills—those environmentally friendly skills—and that new technology is something that most people would support. We just need to make sure the MAC captures the fact that those skills are in shortage in the UK at the moment.

--- Later in debate ---

[The Chair]

Mr Bell, thank you very much for coming today. I remind members of the Committee that at 11 o’clock the bell will ring and there will be a minute’s silence for George Floyd. We will stand for that minute. Would you like to introduce yourself, Mr Bell, for the benefit of the record?

Brian Bell: I am Professor Brian Bell. I am the interim chair of the Migration Advisory Committee and professor of economics at King’s College London.

[Kevin Foster]

Q I will start with perhaps a slightly more general question. The Migration Advisory Committee has recommended that in the context of the Bill ending free movement with the European Union there should not be a dedicated general route for employers to recruit at or near the minimum wage from outside the UK and the Republic of Ireland. Would you like to explain to the Committee the reasoning behind that recommendation?

Brian Bell: If you move to a system in which you take control of immigration and are no longer subject to free movement under the European Union, you essentially have to have a selective immigration policy, and the question is where you think that selectivity should be. All the evidence that the committee reviewed in its 2018 report pointed to the benefits to the United Kingdom being highest when we focused on high-skill immigration—often high-wage immigration—and the gains, to the economy as a whole and also the resident population, which is our key metric, as it were, being highest with those kinds of workers. If you are going to have any kind of selectivity, that is where you want to tilt the balance, as it were.

That does not necessarily mean that you do not have any access to workers at low wages and with lower training or educational requirements. There are other routes that are already available within the system for immigration. For example, the family route allows you to recruit people who come through the family route for immigration, and there is the asylum route—once applicants are granted asylum they can be employed in the United Kingdom without regard to their skill level. There are alternative routes, and in fact that is extremely common. There are an awful lot of non-EEA workers employed in British firms across sectors who would not meet the requirements of the new immigration system but still have a job because they can come through different routes.

At the end of the day, there is a crucial distinction that we draw. With jobs where the training requirement and the education, both academic and vocational, to begin that job are reasonably low, firms can actually compete against each other, and we sort of want firms to compete against each other for workers, because that is good for workers; whereas for more technical, highly skilled jobs with very high training requirements there is often a practical difficulty in getting a new supply if you need it. You cannot just turn on the tap, so migration is a more obvious response for that.

[Kevin Foster]

In terms of that general route for recruitment, the MAC made some specific comments on the care sector, again in the context of the Bill ending freedom of movement. It was very specific against a sectoral scheme. Could you explain some of the rationale for that?

Brian Bell: The first point to bear in mind when thinking about the social care sector is that it is often described as being dependent on migrant workers. Nothing could be further from the truth. Something like 80% of those working in the social care sector are British, so actually it relies on British workers. The European Union is a relatively small fraction of the social care employment sector relative to the economy as a whole, accounting for about 5% of it, depending on which statistics are used.

We do not think there should be a particular route for social care because we think that immigration has historically been used as an excuse to not deal with the problems of the social care sector. The problems of the social care sector are fundamentally nothing to do with immigration. They are to do with the fact that, frankly, Governments of all stripes have failed to grasp the funding issue of social care. If people say that the response to the social care issue should be, “Well, employers should be allowed to bring in as many migrants as they want at the minimum wage,” first, that does not sound like the low-wage problem of the social care sector is being dealt with, and secondly it suggests that one of the groups that will really suffer from that is the social care workers. You are saying that you are going to keep on allowing their wages to be held down by allowing employers to bring in workers at the minimum wage, whereas we want to see wages rising in that sector. That will not happen if there is a continuous supply of free labour from abroad willing to work at the minimum wage.

[Kevin Foster]

Q Some of the earlier witnesses—particularly those from the London Chamber of Commerce and Industry and especially from the Federation of Small Businesses—talked about the need for flexibility when it comes to those sections of the Bill setting how we will empower Ministers to set the future migration system. Given that the Migration Advisory Committee’s role is to provide expert advice to the Government—to myself and the Home Secretary—how do you see it being able to respond to the demands of the new system in the context of the Bill?

Brian Bell: The Migration Advisory Committee has a key role in making sure that we keep a pretty constant view of what is happening across sectors, occupations and industries as the new system is rolled out, to see where problems are emerging. When you switch from a system that has been running for 40 years to a new one that incorporates all European Union countries as well, there will inevitably be teething problems. It would be surprising if that were not the case. We will be focussed on looking for the evidence: where is the system having problems? We will be highlighting those to the Government, and we can do that. We have an annual report that we will be publishing, and we will be highlighting to Ministers where the problems are, as well as potentially what solutions might be available.

[Kevin Foster]

Q The Migration Advisory Committee also advised specifically against having regional variations in the migration policy, specifying that there should not be any in the Bill. Is there any particular reasoning behind that recommendation?

Brian Bell: We were asked explicitly to think about whether there should be regional variation in the salary thresholds that are a key part of the system. The easiest way to answer that is to think about the fact that the median wage in Edinburgh for a full-time worker is higher than it is in Newcastle, Manchester, Leeds, Birmingham, Cardiff and Belfast. Compared to Dumfries and Galloway, it is 25% higher. In other words, regional wage variation—if by that you mean either the nations of Britain or the regions of England—demonstrates that variation within those areas is much greater than variation across them. If you really wanted to go down that route, you would need an immigration system that set thresholds in every local community around Britain. I do not quite know how that would be enforced. You would be explicitly saying that low-wage areas should stay low-wage areas and that high-wage areas should stay high-wage areas. I am not sure that it is a very sensible policy.

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

Kevin Foster Excerpts

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

[The Chair]

Good afternoon. This is the second evidence session, and it will be a mixture of people who are with us physically and people who are here virtually, so we will have to cope as best we can. Our first witnesses are a representative of British in Europe, via audio link, and Professor Bernard Ryan. We have until about 2.40 to take that evidence. I will go first of all to the Minister, then to the Opposition spokesman. Is anybody else desperate to ask a question at the moment? You can put up your hand and intimate to the Clerk that you would like to speak.

Those of you who are sitting at the back of the hall—you are very welcome, by the way—are equally members of this Committee. Apparently if you want to speak, you have to go to a microphone over there. Are we all happy to start the session? We have to ring our witnesses now, so please be patient.

We are ready to start with our first panel of witnesses. Thank you for coming today. This session will have to end at 2.40pm.

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

Q 64 It is a pleasure to serve under your chairmanship, Sir Edward. Mr Morgan, what implications do you see for British citizens living in Europe regarding the social security co-ordination provisions in the Bill?

Jeremy Morgan: The sound is not very good but I will do my best. The question was about social security provisions, is that right?

[Kevin Foster]

It was about what implications you see for British citizens in Europe regarding social security co-ordination provisions in the Bill.

Jeremy Morgan: May I start by thanking the Committee for asking us to give evidence, even in this rather strange way? The social security provisions are crucial for UK citizens in the EU. They govern pensions, pension increases, healthcare, other benefits, and the aggregation of the equivalent of national insurance contributions made in different countries, without which some people would fail to meet the minimum contribution period for pensions or other benefits. Those provisions are preserved in UK law by the European Union (Withdrawal) Act 2018 so there should be no impact. However, as is made clear in the briefing note that we prepared and that has, I hope, been circulated, we are worried about clause 5 because that clause creates a regulation-making power wide enough to modify rights under the withdrawal agreement. We entirely accept that in the explanatory note the Government say that they do not intend to have an impact on our withdrawal agreement rights, but we are worried about that on two grounds, and the concerns are twofold.

First, as a constitutional issue it is wrong to create a power in a regulation that might breach an international treaty. If that is to be done, it should be done by primary legislation after a proper debate. Secondly, and more practically, those social security provisions that are listed in the Bill are right up there with UK immigration law for complexity. It is Byzantine complexity, and that is no exaggeration. It would not be difficult for an unintended breach to slip through. Therefore, to prevent a breach of a treaty by mistake, it is important that any such amendment be made through primary legislation after a proper debate.

[Kevin Foster]

Q Speaking as a Minister, a Minister cannot make a regulation that breaches international law, just to be clear on that point. Would you have concerns if, for example, an agreement on social security co-ordination was reached but the legislation did not allow the Government to quickly implement it?

Jeremy Morgan: I am sorry, I am having great difficulty in hearing the question.

[The Chair]

Minister, I think you need to lean in to the microphone and speak loudly.

[Kevin Foster]

A Minister cannot breach international law in regulations. Would you have any concerns if the legislation, for example, did not empower a Minister to quickly implement an agreement in relation to social security co-ordination if one was reached with the European Union before 1 January?

Jeremy Morgan: You are talking about the future relationship beyond Brexit, effectively?

[Kevin Foster]

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

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

[Holly Lynch (Halifax) (Lab)]

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

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

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[The Chair]

You are very welcome. As we normally do, the Minister will start by asking you a couple of questions, and then the Opposition spokesman, and then other Members will come in. Perhaps other Members who wish to ask questions could intimate to the Clerk that they would like to ask a question.

[Kevin Foster]

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

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

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

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

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

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

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

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

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

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

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

[Holly Lynch]

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

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

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

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

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[The Chair]

We will start with a question from the Minister, then the Opposition spokesman, and then other colleagues will come in as they wish.

[Kevin Foster]

Q I will start with a question to Mr Berry. You will be aware that the Law Commission published its report on simplifying the immigration rules. One of the places we want to go to with the changes in the Bill is having a single set of migration rules. What opportunities do you see that presenting, and what is your view so far on the response that has gone out in terms of simplifying and where you see that further work could be done?

Adrian Berry: I do not think that simplifying the immigration rules has much impact on inbound migration per se. It is obviously a good thing from the point of view of good rule making and from a user perspective. The more pressing question is how you integrate the intention to create free trade agreements with the EU and with other countries, and the migration routes there, with the Home Office proposals from January 2020.

We have the Home Office paper on the future of immigration, and then we have a parallel universe where there are free trade agreements with other migration routes and mobility rates contained in them—not just with the EU, but the proposed ones with Australia, New Zealand and the United States, drawing on precedents from existing EU free trade agreements with Korea, Japan and Canada. There appears to be no joined-up thinking in Government about what impact those mobility routes have on the Home Office proposals of January 2020. It is very important and necessary and urgent to see how that joined-up economic migration regime is going to work, and I have yet to see a Government paper on that.

[Kevin Foster]

Q Perhaps slightly later we can talk about international agreement. Obviously, the other aspect of this is the social security co-ordination clauses. There are negotiations going on, and there is a range of potential outcomes. Do you have any particular views about that clause?

Adrian Berry: On clause 5, you already have powers to amend ineffective retained EU law under section 8 of the European Union (Withdrawal) Act 2018, so you can make regulations under Henry VIII powers to deal with any deficiencies in retained EU law and social security. You have given yourself additional powers under section 13 of the European Union (Withdrawal Agreement) Act 2020 to make regulations for social security co-ordination, so you already have two sets of Henry VIII powers. You are currently negotiating a third social security treaty, annexed to the draft free trade agreement. If that is agreed with the EU, you will have another Act of Parliament that you will need to implement that. Why do you need a fourth set in clause 5? If there is anything left in social security law that you have not covered under the array of Henry VIII powers that you are arming yourselves with, primary legislation and the scrutiny of MPs in this room at the highest level is required.

[Kevin Foster]

Q And do you have any view on the fact that clause 5 will be stretched into devolved competence, subject to legislative consent motions? Is that part of your consideration at all?

Adrian Berry: It is devolved because it is a devolved power under the Scotland Act 1998.

[Kevin Foster]

Q Northern Ireland as well.

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

[Holly Lynch]

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

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

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

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

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

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[Stuart C. McDonald]

Q Ms Sankey, may I turn to you? You have spoken already about how rules around detention will apply to people impacted by the Bill. May I ask you about deportation powers, which became topical a couple of months back, with flights to Jamaica in particular being a source of controversy? How will the Bill impact deportation powers in relation to EU nationals, and what would you like to see changed about it?

Bella Sankey: Thanks very much for the question. The Bill will mean that, for the first time, EU citizens will have the deportation laws that currently apply to non-EU citizens applied to them. Those rules are blunt, they are harsh and they are dehumanising. In 2007, the last Labour Government brought in a power of mandatory deportation for anybody who receives a sentence of 12 months or longer. In 2014, when Theresa May was Home Secretary, the coalition Government introduced additional legislation that meant that if somebody was seeking to resist deportation on the grounds that they had a loving parental relationship with a child in the UK, or a child who was a British citizen, they would only be able to do so if the effect of their deportation would have an unduly harsh impact on that child.

The Home Office defines “unduly harsh” as “excessively cruel”, so at present it is insufficient, if you are a non-EEA national, to show that the impact on your child would be cruel; you need to show excessive cruelty. The effect of that provision means that child cruelty is legislated into our primary legislation. It means that the courts, when they are making these decisions, are forced to allow a deportation to go ahead even though they may find on the evidence that serious psychological harm will be done to a child. The courts are clearly very uncomfortable about that and have said explicitly, in terms, that immigration law can no longer be reconciled with family law principles, because family law principles require the best interests of a child to be taken into account in all public decision making.

That is the situation as it stands. The impact of these laws over the past decade or more has been to cause untold trauma and pain, particularly to Britain’s black community, who are disproportionately impacted because, as is well-known, they are a community that is over-represented in the criminal justice system and subject to social and economic deprivation.

The issue from earlier this year that you mention was, of course, a charter flight to Jamaica. The majority of the people booked on to that flight by the Home Office had drugs convictions—a lot of them when they were teenagers or a long time ago. The law as it stands did not allow any of that to be taken into account, because of the automatic and mandatory power to seek deportation of those individuals.

A number of our clients were victims of modern-day slavery, grooming and trafficking, but again, they found themselves in detention without an opportunity to raise the fact that they had been subjected to that, and of course the large majority of them had been in the UK since they were two or three years old and had been in primary school here and secondary school here. I see the Minister does not seem to be agreeing with this account.

[Kevin Foster]

No.

Bella Sankey: But it is all there on the public record. As I say, the law as it stands has applied in a blunt and discriminatory way against the black community, and this Bill now proposes to extend those harsh provisions to all EU citizens.

I spoke only recently to a woman who was actually removed to Poland on 30 April, leaving behind an 11-year-old child here. She felt that the system had already become unbearable. She was taken into detention following a conviction for theft, and when she was in Yarl’s Wood, without legal aid and without help and assistance, she decided that it would be easier for her and less traumatic for her 11-year-old son if she just went back to Poland. This Bill is going to bring about thousands more Sandras, thousands more family separations, in completely unjust circumstances.

[Mr Goodwill]

Q We have heard already that we need better law, and obviously this will be an opportunity to have better law. It is interesting to note that when the Home Office director general of immigration enforcement left his post and went public in January, he made the point that our immigration system largely fails to deal with those who are here illegally, and he pointed out that over 75% of judicial review applications made to the administrative court were for asylum and immigration matters. According to the most recent figures that he could get, only 54 of the 8,649 applications actually succeeded.

If, at the moment, the law is being used to actually frustrate the legal process of removing people who have no right to be in the UK, do we need to improve the law to make that work better? I am sure you would agree that it is not unreasonable to expect people who have committed serious criminal offences and have no right to be in the UK to be removed under the law of the land.

Adrian Berry: I believe in the rule of law. I think it is a good thing if we have judicial scrutiny of executive decisions, including deportation, removal and detention decisions, in order to ensure that they are lawful and consistent with the values that we have embedded in our Human Rights Act provisions and in our civil liberties provisions and statutes.

To answer your question directly, a lot of judicial reviews are settled on issuing, because the Home Office realises that it has made a mistake and it compromises on them. The second stage at which they are settled is when permission to apply for judicial review is granted and the Home Office realises that it has made a mistake and it compromises; it settles and pays the costs, on a polluter-pays principle. Very few judicial reviews go the distance to a substantive hearing, so you have to be very, very careful in measuring the data between the number of claims lodged and the number of claims that are determined at a final hearing.

What we do know is that judges routinely grant injunctions against removals, on the basis that they see a point in holding the ring in order to determine the true and lawful position in the situation. Whatever someone has done, all their interests—including the public policy interest in their expulsion and, on occasion, the public policy interest in their retention—are to be weighed up before a lawful decision is made. Judicial review is one check on it, in the absence of a proper full range of appeals, that allows that to take place.

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[The Chair]

Good afternoon, Mr Piper. I am Edward Leigh, Chair of this Public Bill Committee. The Minister and the Opposition spokesman will ask questions. We have only 15 minutes. Minister, would you like to begin?

[Kevin Foster]

Q As you appreciate, Mr Piper, the Bill ends the provisions for freedom of movement in UK law, but we have the European settlement scheme set up to protect the rights of those covered by the withdrawal agreement. Given that we have had 3.5 million applications and 3.2 million decisions, how do you think the process is going?

Luke Piper: First, thank you for allowing me to attend by telephone. In general, it is true that the EU settlement scheme is there to provide people with their status and their rights to live in the UK under the terms of the withdrawal agreement. It is a great achievement of the Government’s to set the scheme up. Our concern is about those that do not apply in time and fail to acquire the status by the deadline of June next year. The worry is that those that miss the deadline will face the problems that some of the previous witnesses have spoken about—the risks to jobs and homes, and access to healthcare, welfare and so forth. Although there have been over 3 million applications to the scheme, it is not a reflection of the numbers of people that have applied or have succeeded, or of the types of status that are under it. This is more about an issue of recognising that there is a potential problem here. Yes, freedom of movement will end and there is a new status that people can acquire, but it is about creating safety mechanisms and ensuring that there is a safe passage for people to move from their old status to their new one. That is what we would like to see amended in the Bill to ensure that that security is there.

[Kevin Foster]

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

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

[Holly Lynch]

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

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

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

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

--- Later in debate ---

[The Chair]

I take it that we have on the line Lucy Leon, immigration policy and practice adviser for The Children’s Society. Minister, you have a question.

[Kevin Foster]

Q In your briefing, you suggest two amendments to the Bill related to granting an automatic status. How do you suggest that a child, who may need to rely on a status in some decades’ time, would be able to evidence the status that had automatically been created?

Lucy Leon: I am sorry; the line is really unclear. I heard that you were trying to ask me a question about automatic status. Would you be able to repeat the second part of the question, please?

[Kevin Foster]

You talked about automatic status—granting something under a piece of legislation to someone. Under your suggested system, how, in decades to come, would an adult evidence the status that they were granted as a child?

Lucy Leon: The line is not very clear, so apologies if I have misunderstood the question, but are you asking what it would be like in decades to come if we granted children automatic status?

[Kevin Foster]

Yes. If they had to evidence their status many years later, how would they do it? How would they be able to define their status, as against someone who arrived in March 2021, for the sake of argument, and was not entitled to that status?

Lucy Leon: We have put forward an amendment about automatic status for vulnerable children, particularly those who are in care or are care leavers. We are not just looking to give them automatic settled status; we want local authorities to be given a duty to identify those children, and a timeframe in which they need to be identified and offered settled status. This would enable a financial burden to be lifted and pressure to be taken off the overstretched local authorities that are struggling right now.

We are not suggesting that children do not go through the scheme. We are saying that they still need to go through the scheme, but should be given indefinite leave, as opposed to pre-settled status, because children are falling through the net and social workers are struggling to understand their roles and responsibilities under the scheme. They do not know the processes, and they are struggling to locate documents for young people.

[Kevin Foster]

Q To be clear, your suggestion is that these children should go through the European settlement scheme to get the evidence they need, and in essence, your point is about how local authorities apply.

Lucy Leon: Sorry, it is really hard to hear you. The line is really not very clear.

[Kevin Foster]

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

[Holly Lynch]

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

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

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

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

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[The Chair]

Good afternoon and welcome to our session. We have until 5 o’clock. Would you like to introduce yourselves for the record?

Alison Harvey: My name is Alison Harvey. I am a barrister at No5 Chambers in London.

Ian Robinson: I am Ian Robinson. I am a partner in Fragomen, the immigration law firm.

[Kevin Foster]

Q I should like to ask both witnesses this. Part of the process of moving to a single migration system, which the Bill sets the framework for, is to simplify the immigration rules. Do either of you have any thoughts about how it goes towards doing that?

Alison Harvey: Essentially, it does not have anything to do with that. There has been a lot of talk about the Bill setting up the new points-based system. It does not; it gets rid of the free movement law, and that is all it does. Although I have not sat on it yet, the Bar Council has appointed me its representative to the simplification committee on the rules, and I gave evidence to the Lords Constitution Committee about this a while ago.

If you look at what the Law Commission and the Home Office have published on the rules, it is simpler but not simple. We will not get to a simple system or anything like one until we consolidate the primary legislation. Let us remember that our immigration legislation is built on the Immigration Act 1971, which came into force on 1 January ’73, when we joined the EU. Before that, we had only had four years in this country, in all its history, without free movement. If you go back to 1066 and beyond, you have everyone within the King’s allegiance and dominions moving freely within the allegiance and dominions, subject to the limitations in place in 1066, but they were not legal limits. The passport that you have from Hull is the same as the passport that you have from Bangalore.

We then had the Commonwealth Immigrants Act 1968, which cut off free movement, but we were bigger then. As well as our current overseas territories, we had the associated states in the Caribbean, from which people came. That period of March 1968 to 1 January 1973 is the only period in our history when we have been as small as we are going to be from June, so the change is massive.

We are managing with a rickety old Act that desperately needs changing. The problem with immigration law is that every time you change it, you have to deal with the people under the old regime and make transition provision, so change always results in complexity.

Ian Robinson: The simple answer is that we are going from two immigration systems to one. Right now, we have reasonably simple arrangements for free movement and complex arrangements for non-Europeans. We will have one complex arrangement for everybody. In some areas, it will become slicker, I suppose, but it will remain complex.

In an international context, my clients will quickly recognise that the UK has a simpler, more transparent immigration system than many countries. That is great if you are a multinational, but if you are a small or medium-sized enterprise dealing just with the UK immigration system, that does not really help you, and the complexities can still trip you up. Likewise if you are an individual.

[Kevin Foster]

Q Do you have any particular thoughts on how businesses will engage with this system?

Ian Robinson: In terms of the skilled part of the system, we will have one of the better skilled immigration systems in the world, in terms of much of the policy and the speed as it relates to skilled people. Where that falls down is the cost. I suspect that there will be more questions about that later, and I can cover them. We are wildly more expensive than other countries. What businesses want is speed. Singapore and one or two central African countries aside, no one can issue visas as quickly routinely as the UK does. We are very good at that. There are on-entry arrangements in Canada, but we are very good at issuing visas.

If I were talking to an American or Canadian audience, they look for predictability. We can offer certainty. It is a fairly tick-box, prescriptive list for a work permit, which is good. In that respect, it is a good system. It becomes more difficult again when you look at cost. It becomes difficult when you look at lower-skilled workers and the fact that the tap will be turned off, unless we have a youth mobility scheme.

My clients are not quite sure where they stand on that at the moment. On the one hand, if you had asked me three months ago, they were very concerned. Covid changes things, but they are nervous about taking the gamble now that there will be enough people in the labour market after the pandemic is cleared.

The final point that I would make is that if you are an established user of the system, used to working with Indian, US and other non-European migrant workers, you are going to experience a much better immigration system when we have a lower skill level, marginally lower salary, and one or two other changes, particularly when the new technology comes in for sponsorship.

But if you have never used the immigration system in that way before, and if you do not already have a licence, there is a real risk that you will have no idea and no time at the moment to apply for a licence. You probably will not have before the end of the year, so you will realise you need to too late, at which point, unless a concerted effort is made not only by the Home Office, but by trade bodies to push employers to apply for licences, we will be back to six-month delays before a company can even begin to make a visa application, which is not great. Steps need to be taken to make sure that employers know what will be expected of them, and that they can, as easily as possible, get the tier 2 sponsor licence.

[Kevin Foster]

Q I have a brief question for Ms Harvey, given the provisions in the Bill about Irish citizens. We are providing a clear provision for Irish citizens. I note your own background and work on that area, so I wonder whether you have any particular comments on those provisions.

Alison Harvey: You have heard this afternoon—I did not manage to hear his evidence—from Professor Ryan. He has a grasp of the issue that is second to none. Clause 3ZA is very useful and important. I do think that it lowers the protection from deportation for the Irish. The Irish do not deport Brits at all. I think we ought to address that.

My own work has been around giving effect to the Good Friday agreement in the work I have done for the Irish Human Rights and Equality Commission and the Northern Ireland Human Rights Commission about looking at the Good Friday agreement. I would like to see, as a bedrock that would deal with some of the concerns about deportation and the question of identifying solely as Irish, a right of abode given to all the people of Northern Ireland, whether they identify as British or Irish or both.

A right of abode protects you from deportation. It is as close as you get to citizenship. You get the whole packet of rights. From the point of view of the Administration, the Government, the country, and the people in benefits offices, if you know that if you were born in Northern Ireland, you have a right of abode in the UK, it becomes much less problematic whether you identify as British or Irish or both. You essentially know what your social security entitlements and your health entitlements will be. I think that is the bedrock on which we build the flexibility in identification.

[Kevin Foster]

Briefly, because I am conscious that others want to come in, there has been mention of the deportation of Irish citizens. Can you think of an example—not of an extradition, I have to say, because that is a different provision?

Alison Harvey: An example where someone was deported?

[Kevin Foster]

An example where an Irish citizen has been deported from the United Kingdom or Northern Ireland.

Alison Harvey: I was looking at this recently for an article and I think there were examples at the time. I think they fall parallel with the Prevention of Terrorism (Temporary Provisions) Act 1974, where we were confining people to Northern Ireland or to Britain or not letting them in, so you have rules on third-country nationals, but they also have the potential to affect citizens of the two countries. It was in that period, and there was an overlap between the security powers that were being used at the time with the roll-over of the Prevention of Terrorism Act and the control orders and deportation—

[Kevin Foster]

They are historical pieces of legislation.

Alison Harvey: Yes, they have totally gone now.

[Holly Lynch]

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

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

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

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

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

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

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

Kevin Foster Excerpts

Committee stage & Committee Debate: 4th sitting: House of Commons
Thursday 11th June 2020 Public Bill Committees

[The Chair]

I remind the Committee that with this we are discussing the following:

Amendment 3, in clause 4, page 2, line 34, leave out “, or in connection with,”

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 in connection with the equivalent Bill introduced in the last session of Parliament.

Amendment 20, in clause 4, page 2, line 35, leave out “this Part” and insert “Schedule 1”

This amendment seeks to limit the scope of the power in Clause 4 to matters concerning the ending of retained EU law rights that currently preserve free movement and immigration-related rights.

Amendment 21, in clause 4, page 2, line 35, at end insert—

‘(1A) The power to make regulations under subsection (1) may only be exercised within the period of one year from the day on which this Act is passed.

(1B) Regulations made under subsection (1) shall cease to have effect after a period of two years from the day on which this Act is passed.”

This amendment would restrict the use of the Henry VIII powers contained in Clause 4 to a period of one year from the date of the Act being passed; and would prevent any changes to primary legislation made by exercise of these powers having permanent effect unless confirmed by primary legislation.

Amendment 4, in clause 4, page 3, line 6, leave out subsection (5).

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 in connection with the equivalent Bill introduced in the last session of Parliament.

Amendment 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).”

Amendment 22, in clause 4, page 3, line 8, at end insert—

‘(5A) Regulations under subsection (1), in relation to persons to whom the regulations apply under this Act, shall be made in accordance with the following principles—

(a) Promotion of family life, particularly that between children and their parents and that between partners;

(b) That persons in the United Kingdom should have a right of appeal to the First-tier Tribunal against any decision to refuse leave remain, to curtail leave to enter or remain or to make a deportation order;

(c) that where leave to remain is given—

(i) on account of a person’s long residence in the United Kingdom; or

(ii) to a person whose continuous residence in the United Kingdom includes five years of that person’s childhood; or

(iii) to a child who has lived in the United Kingdom for a period of seven continuous years;

that leave is given for an indefinite period;

(d) that leave to enter or remain given to a person for the purpose of establishing or continuing family life in the United Kingdom is not subject to a condition restricting work, occupation or recourse to public funds; and

(e) ensure that no change to immigration rules or fees is made—

(i) unless sufficient public notice has been given of that change to ensure any person affected by the change who is already in the United Kingdom with leave to enter or remain has reasonable opportunity to adjust their expectations or circumstances before the change takes effect; or

(ii) that would require a person given leave to enter or remain for the purpose of establishing or continuing family life in the United Kingdom to satisfy more restrictive conditions for the continuation of their stay than were required to do so at the time the person was first given leave for this purpose.”

This amendment seeks to ensure that exercise of the delegated powers in clause 4(1) is guided by certain principles.

Amendment 12, in clause 8, page 5, line 40, at end insert—

‘(4A) Section 4 and section 7(5) expire on the day after the day specified as the deadline under section 7(1)(a) of the European Union (Withdrawal Agreement) Act 2020.”

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

It is a pleasure to serve under your chairmanship this afternoon, Mr Stringer. This group of amendments raises important issues about the scope of the regulation-making power in clause 4. I would like to thank the hon. Member for Cumbernauld, Kilsyth and Kirkintilloch East for speaking to his amendments and for the effort he has put into them. I know that he has a strong interest in the use of the power in clause 4, as he had when the Bill was previously in Committee, in 2019. However, despite the explanations given to him then, he appears still to be misinformed about how the Government are planning to use this power, and I hope that my response will help. A lot has been said today and in the evidence sessions about this power granting Ministers a blank cheque. That is not the case, and if you will permit me, Mr Stringer, I will set out how we intend to use the power and respond to the hon. Member’s amendments as I do so.

The power is intended to enable three broad things via regulations. The first is to ensure that our laws operate coherently once freedom of movement ends and the relevant provisions in schedule 1 are repealed. There are references across the statute book to EEA citizens, their free movement rights and their status under free movement law, which need to be addressed through regulations made under this power.

For example, regulations made under section 126 of the Nationality, Immigration and Asylum Act 2002 list the documents that must be provided in support of various types of immigration application. One type relates to applications under the Immigration (European Economic Area) Regulations 2016, which implement the free movement directive. That reference needs to be removed because those regulations are revoked by schedule 1, so there will no longer be applications under them. It is therefore important that the power is wide enough to ensure that all references to the EU and free movement rights in primary and secondary legislation can be amended appropriately as a consequence of, or in connection with, the ending of free movement.

That is why the Government do not and cannot accept amendments 2 and 3, as they would prevent us from meeting our manifesto commitment of ending free movement and introducing a new, fairer points-based immigration system. We also do not want the provision drafted so narrowly as to lead to challenge and uncertainty about whether an amendment is “appropriate” or “necessary” “in connection with” or “in consequence of” the end of free movement. Such an amendment would enable those who oppose the principle of ending free movement, which I accept the Scottish National party does, to seek to achieve that through the courts by challenging these regulations, since they were not able to achieve it at the ballot box in December.

The second reason that the power is important is to align the immigration treatment of EEA and non-EEA citizens for those who arrive from 1 January 2021, after the end of the transition period. That will enable us to deliver the new global points-based immigration system under which everyone is treated equally—for example, by removing EEA citizens’ exemption from the immigration skills charge. We also intend to use the power to align the rules on access to benefits, so that EEA citizens and non-EEA citizens are treated the same under the new global points-based system. It is worth me clarifying that the detailed requirements for the future points-based immigration system will be set out in the immigration rules made under the Immigration Act 1971 and subject to parliamentary scrutiny of those changes, not through regulations made under clause 4. Control has been taken back by Parliament and will be there.

Thirdly, the power will enable savings and transitional provisions to be made—for example, to protect EEA citizens’ existing appeal rights under the EEA regulations. That is in addition to the protections to be delivered for EEA citizens resident in the UK by the end of the transition period through statutory instruments, which the Government will bring forward under the European Union (Withdrawal Agreement) Act 2020.

I understand that clause 4 is a complex, technical power. That is why the Government have already produced information to help the Committee understand the power, through the factsheet published on gov.uk. I have also given examples of changes that we intend to make under the regulations. It is absolutely right that Parliament pays close attention to delegated powers such as these. I noted the recommendations of the Delegated Powers and Regulatory Reform Committee in the report on the Bill in the previous Parliament.

Amendment 4 would remove the provision to make changes in relation to fees and charges. Regulations made under this power may only modify legislation relating to the imposition of immigration fees and charges where that is as a consequence of or connected with the provision in part 1. That enables the application of fees and charges to EEA citizens, who are currently exempt from them, such as the immigration skills charge, which is paid by the employer.

Amendments 20, 21 and 22 would further limit the scope of the regulations made under clause 4. Let me set it out again that we need this power to ensure that our laws operate coherently once free movement ends, to align the immigration treatment of newly arriving EEA citizens and non-EEA citizens from 1 January 2021, and to make relevant savings and transitional provisions for resident EEA citizens that cannot be made under powers in the European Union (Withdrawal Agreement) Act 2020.

Amendment 20 would prevent the regulations from being used to make amendments that are in consequence of or in connection with clause 2, which protects the unique position of Irish citizens in the UK once free movement ends. I understand the queries about that point. To be absolutely explicit, we intend to use that power in a very limited way to amend provisions in the Immigration Act 1971 that cover entering the UK via the common travel area. We will not use them for wider changes. As I said this morning, the Belfast agreement is fundamental international law, as well as a fundamental part of our constitution.

Amendment 21 is intended, first, to sunset the power in clause 4 by setting a deadline for its use of one year after the Bill is passed and, secondly, to ensure that regulations made under the power expire after two years. As the hon. Member for Cumbernauld, Kilsyth and Kirkintilloch East is, I suspect, aware, regulations will need to be made under clause 4 to coincide with the repeal of free movement law by part 1. We have endeavoured to ensure that they make all the changes required by primary and secondary legislation, to come into effect by the end of the transition period. Beyond that, I assure him that we would make further changes under the power only if that were required, and Parliament will be fully engaged whenever it is used.

The power cannot be used to make amendments relating to the consequences of exiting the EU more generally; it can be used only in consequence of or in connection with ending free movement and the clarified status of Irish citizens. Changes cannot be made indefinitely, as they would not be in consequence of or in connection with that purpose. For example, the powers cannot be used to amend future primary legislation or general immigration policies.

The second limb of amendment 21 provides that any regulations made under clause 4 would expire after two years. That would mean that the legislation that had been amended reverted to its former state, creating confusion for the public and leading to a partial revival of elements of free movement, which I suspect is the outcome that the hon. Gentleman is partly hoping for. This is not an outcome that we can accept.

Amendment 22 would require that regulations made under the power in clause 4 complied with a specified set of principles. It would have the effect of continuing to treat newly arriving EEA citizens differently from non-EEA citizens. That is not consistent with establishing a new global points-based immigration system focused on the skills and contributions that people have to offer the UK, not where their passport is from.

Amendment 12, which was tabled by the hon. Member for Torfaen (Nick Thomas-Symonds), is also intended to sunset the power in clause 4 by setting the end date for its use as the day after the end of the grace period, on 30 June 2021, by which time EEA citizens and their family members resident in the UK by the end of the transition period must have applied for status under the EU settlement scheme unless, as we constantly repeat, there are reasonable grounds for missing the deadline.

I hope that I have reassured hon. Members concerning the important limitations on the use of the power in clause 4. I emphasise that it cannot be used to make amendments that relate to the consequences of exiting the EU more generally, but only in consequence of or in connection with ending free movement and the clarified status of Irish citizens provided by clause 2.

We will endeavour to make all the changes required to primary and secondary legislation in the forthcoming regulations to be made under clause 4 later this year. However, should we identify the need to make further regulations related to part 1, it is important that we have the power to do so, subject to the full scrutiny and approval of both Houses.

When a power to make regulations expires, so do any regulations made under it, so if the amendment were passed legislation that had been amended would revert to its former state, creating confusion for the public and leading to a partial revival of elements of free movement, which may have been the intention. However, that is not an outcome that the Government can accept.

Amendment 15, which was tabled by the hon. Member for Stretford and Urmston, would ensure that children of EEA and Swiss citizens resident in the UK were not adversely affected by the ending of free movement rights. She asked specifically about numbers, and I had an opportunity over the break to get the figures for the period up to 31 March 2020—they are published quarterly. Of the under-18s who have applied to the European settlement scheme, and where a decision has been taken, by 31 March, 261,880 were granted settled status and 150,940 were granted pre-settled status. That compares with just 20 refusals of applications from applicants aged under 18. Those refusals may well be on grounds purely of eligibility—that is, not having proof of living within the United Kingdom.

Given the hon. Lady’s specific query, I thought it would be helpful to give that clarity. It is not possible to say exactly how many people may be eligible, because free movement rights and rights relating to those who become eligible to apply to the European settlement scheme still operate up to 31 December. It is impossible to say exactly who will arrive tomorrow, for example, and be entitled under the withdrawal agreement to apply to the European settlement scheme. I hope that gives her some reassurance on where we are. It is worth saying that the overall level of applications to the European settlement scheme is now over 3.5 million and the number of decisions taken is over 3 million, which puts the numbers we are talking about into context.

Amendment 15 would create a two-tier system of family migration, with one set of requirements for the children of EEA and Swiss citizens and another for children of non-EEA citizens. It would lead to EEA citizens potentially being given preferential treatment inconsistent with the new points-based immigration system and with our aim of having a new single approach to migration rules, regardless of where a passport comes from.

The Home Office has, as the hon. Lady touched on, a very clear statutory obligation to take into account the need to safeguard and promote the welfare of children in the UK when carrying out immigration functions. That extends to all children, not just the children of EEA or Swiss citizens. This is contained in section 55 of the Borders, Citizenship and Immigration Act 2009. That, together with article 3 of the UN convention on the rights of the child—part of international law, as she pointed out—means that consideration of the child’s best interests must be a primary consideration in immigration decisions affecting them.

The amendment could create a separate and preferential family migration system for the family members of EEA or Swiss citizens compared with the family members of non-EEA citizens. The proposed condition under clause 4—that the Secretary of State is satisfied that there would be no detrimental impact on the children of EEA or Swiss citizens—could lead to non-EEA citizens with children and the children themselves being treated less favourably for no reason other than their nationality and with no justification for that, given that the United Kingdom has now left the European Union. This is not a basis on which a new global immigration system can be founded.

The Bill’s core focus is to end free movement. The design of the new points-based immigration system will be developed consistent with our international and domestic obligations to safeguard and promote the welfare of children. For that reason, as set out in our published policy equality statement on the immigration measures in the Bill, we have committed carefully to consider all equalities issues, including the impact on children, as these policies are being developed, but not on the basis of a two-tier approach between non-EEA and EEA children.

It is important to debate the appropriate use of delegated powers, and I welcome this, but the Government are committed to ending free movement now that we have left the EU and this clause is an essential part of delivering that. It will be used to deliver a clear and coherent statute book and level the playing field for future migration by removing the preferential treatment of EEA citizens and their family members under EU freedom of movement rules.

In future, the UK’s immigration system will be firmer, fairer and global, rather than one based on where someone’s passport comes from. I suspect that I might not have been able to fully reassure Opposition Members on the power under clause 4, but I ask them not to press their amendments, which the Government cannot accept.

--- Later in debate ---

[Kate Green (Stretford and Urmston) (Lab)]

I, too, endorse the speeches we have heard in relation to this amendment. I only want to make two points to the Minister. First, the long delays in processing asylum applications and then appeals is, I think we can agree, a real concern for everybody in this House. The problem with having a ban on asylum seekers working is that there is very little incentive for the Home Office to make rapid progress in dealing with those cases. Indeed, given that 45% of appeals now succeed, it seems that we are taking a very long time to fail to give the chance to work to people who will ultimately obtain it.

Secondly, I want to ask the Minister a question that follows on from the one asked a few moments ago about his personal attitude towards lifting the ban on asylum seekers’ right to work. In the last Parliament, the previous Home Secretary, the right hon. Member for Bromsgrove (Sajid Javid), undertook to carry out a review of the policy and to give consideration to whether it needed to be revised. I do not think we ever heard the outcome of that review. It would be helpful to know whether the Home Office continues to conduct that review, when we might hear the outcome of it and whether evidence to support such a review is being sought from civil society and from parliamentary colleagues who might wish to submit ideas. It has been a long time since that commitment was made to the Home Affairs Committee, and it would be good to hear the status of that review.

[Kevin Foster]

I could make this a very quick response by saying that EEA citizens’ asylum claims are inadmissible, but given the constructive nature of Opposition Members’ speeches, I will respond more fully than the strict wording of the amendment allows me to. To my knowledge, there is literally no one with an outstanding asylum claim from an EEA country because they are inadmissible and therefore would not have to wait six months for a determination.

To be clear, our rules on the inadmissibility of asylum claims from EU citizens derive from the so-called Spanish protocol—part of the treaty of Amsterdam, dealing with this specific issue—which allows EU member states to treat an asylum claim by a citizen of another EU country as automatically inadmissible, unless exceptional circumstances apply. Those will, by their nature, be very rare. Claims from EEA citizens who are not part of the EU are considered by the UK, but on the basis that they are likely to be clearly unfounded. All EEA citizens, including those not in the EU, are considered to be from safe, democratic countries and are highly unlikely to suffer a well-founded fear of persecution or serious harm there. For those reasons, and because we do not foresee a change in these circumstances given the nature of the countries concerned, we intend to continue our policy on inadmissibility for EU citizens and rules regarding EEA citizens post the transition period. As a consequence, amendment 13 would be inconsistent with our broader policy on asylum claims from EU and EEA citizens.

Turning to Members’ wider remarks, our current policy allows asylum seekers to seek permission to work in the UK if their claim has been outstanding for 12 months through no fault of their own. Those permitted to work are restricted to jobs on the shortage occupation list—to use one example cited by the hon. Member for Coventry North West, a doctor—which is based on expert advice from the independent Migration Advisory Committee. We have recently commissioned the MAC to advise us on the shortage occupation list under the new points-based system. As Members will know, the required skill level is going from RQF6, graduate, to RQF3, A-level, which will potentially expand the number of posts that are available. Given the type of countries and education systems, it is likely that we will have more, for example, skilled chefs, who would be considered to be at level RQF3 and not RQF6.

[Holly Lynch]

I am grateful to the Minister for the constructive tone of his response. We heard in evidence from the Migration Advisory Committee earlier this week that there is quite a significant delay in determining which jobs are on the shortage occupation list. We may well have skills that could be put to good use but have not yet found themselves on that list. Is there not a more dynamic way that we can have another look at that?

[Kevin Foster]

I appreciate the sentiment. Traditionally the MAC has only operated on commission, when the Home Secretary or the Immigration Minister asks it to look at something. We are in the process of appointing a new chair of the Migration Advisory Committee, and we are looking at how it can work on a more predictable cycle. The call for evidence on the shortage occupation list is open, and with the skills threshold changing, we need to update the list for 1 January 2021. I would certainly encourage any organisations that the hon. Member is in contact with to make submissions, given the quite significant change, which will allow a wider range of practical skills, not just the purely academic skills that the list inevitably reflects by setting the bar at degree level. Senior careworker is a good example of a position that we expect to be between RQF3 and RQF6, rather than not qualifying, and it is worth remembering that that list will apply on a global basis.

Returning to the amendment, it is important to distinguish between those who need protection and those seeking to come here to work, who can apply for a work visa under the immigration rules. Our wider immigration policy could be undermined if there was an incentive for individuals to try to bypass the work visa rules by lodging wholly unfounded asylum claims in the United Kingdom.

Secondly, unrestricted access to employment opportunities may also act as an incentive for more people to choose to come here illegally, rather than claiming asylum in the first safe country they reach, particularly within the European Union. We cannot have a policy that increases that risk, even though it has to be said that clearly an EEA citizen would not be fleeing war or persecution.

[Kate Green]

I understand the fear that the Minister is expressing, but does he accept that all meta-analysis of countries that offer asylum seekers a right to work shows that they experience no increase in asylum-seeking, or no relatively higher rate of asylum-seeking, than countries that do not offer such a right?

[Kevin Foster]

As I touched on, there is some ability to work for those whose claims have been delayed for a significant period of time, but we are not satisfied, given what we have seen with past attempts to use parts of the migration system to avoid the restrictions or avoid having to come through the appropriate process to work here, that what the hon. Lady said would not be the case. We cannot readily dismiss the impact that removing such restrictions would have, nor its impact on our capacity to support genuine refugees who are in need of our protection, given that our system also has to deal with those claims that are unfounded and are more about intending to acquire a right to work in the United Kingdom.

I will take this opportunity to make it clear that I acknowledge the well expressed concerns of Opposition Members. The Government are committed to ensuring that asylum claims are considered without unnecessary delay, to ensure that individuals who need protection are granted asylum as soon as possible and can start to rebuild their lives. As the hon. Member for Halifax will know, once someone is granted asylum they are given immediate and unrestricted access to the labour market.

I heard the points that were made eloquently by the hon. Members for Coventry North West, and for Stretford and Urmston about the time that it can take to make some of these decisions. That is also a concern for me as a Minister and for the Government, because if people have a founded claim, we want it brought to a resolution as quickly as possible, so that they can move on and rebuild their lives. Similarly, if a claim is wholly unfounded or based on—if I might put it this way—inaccurate information being provided by the applicant, we want to come to a speedy decision to facilitate their removal from the United Kingdom, to ensure that our system is fair as well as firm.

The new service standard for asylum applications, which is intended to try to bring back some balance to the system, is currently being developed. UK Visas and Immigration is engaging with stakeholders as part of these plans and considering any insight that those stakeholders offer as it tries to shape a new service standard, which was touched on by the hon. Member for Coventry North West, as a start in attempting to tackle some of these issues.

Finally, the hon. Member for Stretford and Urmston asked about the review commissioned under a previous Home Secretary. We are in the process of reviewing the right-to-work policy, with officials looking at the body of evidence available. Therefore, it would be inappropriate for me to comment further until that review is complete, other than to say that that process is ongoing.

Having made those comments, the Government cannot accept the amendment and we hope that it will be withdrawn.

--- Later in debate ---

[Holly Lynch]

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.

[Kevin Foster]

I thank the hon. Member for Cumbernauld, Kilsyth and Kirkintilloch East for speaking to his further amendments on clause 4. Amendments 5, 6, 8 and 9 deal with the parliamentary procedure for regulations made under the clause 4 powers, as has been outlined. The made affirmatory procedure is needed in the event that there is a short window between the Bill’s Royal Assent and the end of the transition period on 31 December 2020. This is why the provision for the affirmative procedure that the hon. Gentleman and the hon. Member for Halifax have suggested would not work. Free movement must end on 31 December at the end of the transition period, and it is important to ensure that regulations made under this power align the treatment of European economic area and non-EEA citizens who arrive in the UK from 1 January 2021.

To clarify, under the made affirmative procedure, Parliament will be asked to approve the regulations within 40 days of their being made to enable them to continue in force, so Parliament does have scrutiny of the use of this power. If either House does not approve the regulations, they will cease to have effect, but subsection (10) preserves the effect of anything done under these regulations before that point to ensure legal certainty—in essence, for someone who is granted immigration leave after applying under a rule that would come into effect on 1 January.

Using this power does not mean avoiding parliamentary scrutiny. The secondary legislation to be made under this power is still subject to full parliamentary oversight under the established procedures, although I expect the hon. Member for Cumbernauld, Kilsyth and Kirkintilloch East may actually be disappointed at just how limited and benign they end up being. It is important to debate the appropriate use of delegated powers, but the Government are committed to ending free movement now that we have left the EU, and this clause is an essential part of delivering that and ensuring that it can be done, with the new system in place, on 1 January 2021. We therefore cannot accept these amendments.

[Stuart C. McDonald]

I am grateful to the Minister for his explanation. I am not convinced that there will be a time problem between the Bill coming into force and the end of the transition period, so I insist on pressing amendment 5 to a vote.

Question put, That the amendment be made.

--- Later in debate ---

[Holly Lynch]

We are enormously sympathetic to all the points that the Scottish National party spokesperson has just made on amendment 1, but I want to focus my comments on new clause 34, which we support. It would ensure that EEA and Swiss spouses of UK nationals were not ineligible for visas because of job cuts and furloughs resulting from the coronavirus. For many families, the coronavirus crisis has already led to loss of livelihood and prolonged separation. Now, families of British citizens with EU spouses fear that they will be permanently separated if their partner cannot secure a visa because their job security has been affected by coronavirus and they no longer meet the income threshold to settle in the UK.

We feel strongly that we should at this time give families as much security as possible. In the crisis, unemployment has crept up significantly, and there are limited work prospects. A recent publication for the Institute for Public Policy Research, using data from the labour force survey, found that migrants to the UK are far more likely to be working in industries affected by the crisis, including accommodation and food services. Migrants are also more likely to be self-employed and in temporary work, which puts them at particular risk of losing income, or having diminished income, as a result of the crisis.

We can foresee a ruthlessly competitive job market in the aftermath of the crisis. The new clause seeks only an appropriate grace period for the duration of the crisis on the minimum income requirement, for those who were working hard to ensure that they met it. It seems entirely appropriate to use the expiration of the Coronavirus Act 2020, as set out in the new clause, to set that.

A constituent of mine who worked at McDonald’s needed to meet the threshold so that his wife could stay in the country, and will fall short, having been furloughed. Another woman who contacted me has a one-year-old and is pregnant with her second child. Having been furloughed, she has had to get a second job to top up her income, to meet the minimum income requirement for her partner to join her. A raft of visa issues have been exacerbated by coronavirus, and I do not think that I am being unreasonable in saying that the Government have not been particularly swift in offering clear, effective advice about the status of citizens throughout lockdown. That is causing huge additional and unnecessary anxiety for affected families at what is already a worrying time.

We have heard that there has been ambiguity about information on the Government website this week. The Home Office issued information for those on furlough, announcing on 9 June that if someone had earned enough to meet the minimum income requirement in the six months before March 2020 but their salary had dropped on being furloughed, they could still apply as if they were earning 100% of their income. That is welcome, but are the Government minded to extend consideration to those who lost their jobs entirely, and to grant them a grace period of some kind?

I should be grateful if the Minister responded to those points and considered the new clause as a way not to pile further worry and uncertainty on to families who are looking to reunite.

[Kevin Foster]

I appreciate the intention behind amendment 1, which is to create a means whereby, in future, EEA citizens would be able to join a spouse, partner or parent in the UK who was either a British citizen or settled here, without being subject to the current and established financial requirements for family migration. I also appreciate the intention behind new clause 34, which is to extend the concessions that the Government have already put in place for people subject to the minimum income requirement who are affected by covid-19 and the measures necessary to tackle it.

So that those subject to the requirement will not be unduly affected by circumstances beyond their control, a temporary loss of income during the pandemic will be disregarded. I hope that members of the Committee will appreciate that it would be difficult, and probably not appropriate, for me to go through an exhaustive list of circumstances that we might consider. However, new guidance is certainly online; I have just checked. I have summarised some of the details at least in one answer to a parliamentary question this week. It is my clear understanding that if someone is furloughed and, under their contract of employment, their potential earnings at 100% would be over £18,600—there are a couple of caveats to that, but we will stick with £18,600 for now—but the 20% furlough effect takes them below that figure, that drop in income will be disregarded. It is their substantive income that we will take into account, if they are still in their job and able to return to it when furlough comes to an end. For convenience, I will write to the Committee setting out the guidance we have given so that Members have it to hand, given the concern and interest that has been shown.

Let me be clear from the outset that the effect of amendment 1 and new clause 34 would be to create a separate and preferential family migration system for EEA and Swiss nationals and their families when compared with the situation of British or settled people’s family members who are non-EEA citizens. That is the intention of the amendments. That would lead to a perception that non-EEA family members were being discriminated against for no reason other than their nationality and would likely be regarded as unlawful for that reason, given that we have now left the European Union and the basis for having a two-tier immigration system has fundamentally been removed. I accept that Members would argue that they would like to change the rules overall, not just for EEA citizens, but the focus of the Bill is EEA citizens; it is not a general migration Bill.

[Holly Lynch]

Does the Minister not accept, however, that the difference for British citizens in EU countries is that when they took decisions to form relationships and families elsewhere in Europe, they did not envisage that the rules would change and that free movement rights would be taken away from them? The immigration rules have changed for them in a way that they have not for other British citizens in other countries around the world.

[Kevin Foster]

When anyone takes the decision to go and live abroad, there is no guarantee that migration rules will not change while they are living abroad; rules have changed over the years for British citizens living outside the EEA. However, we have put in place a longer transitional period, which I think will be to 2022—it will be nearly six years after the referendum by the time that is implemented—for those who have moved abroad on freedom of movement. Even then, they will still have the ability to move back under the family migration rules, the same as UK citizens living anywhere else.

It is also worth noting that someone who might apply for a spousal visa could also apply under tier 2. To touch on the point about potential earnings in this country, someone who qualified for a skilled work visa would be able to apply through that route if they were not able to apply through the spousal visa route. They would not, for example, be barred from settling with a UK citizen here because they were on a tier 2 visa rather than a spousal visa. Actually, under some of the provisions, particularly if they were a healthcare worker, they would potentially be quicker to settlement overall if they took that opportunity. I know that is a point that has been raised about those who might have an earning potential.

Let me go into some of the details of why we do not think amendment 1 is the right approach. The amendment seeks to replace the minimum income requirement for British citizens and settled persons to sponsor EEA family members with a test that has three separate components: being able to maintain and accommodate the family without recourse to public funds; taking account of the prospective earnings of the EEA nationals seeking entry; and taking into account any third-party support available. Let me address those in turn.

The first component—the simple ability to maintain and accommodate without recourse to public funds—would take us back to the policy that was in place before the minimum income requirement was introduced in 2012. It was partly because the test for whether a family could maintain and accommodate themselves without recourse to public funds was difficult to apply consistently that the minimum income requirement was introduced. The minimum income requirement provides certainty to all by ensuring that family migrants are supported at a reasonable and consistent level that is easy to understand. As Opposition Members have alluded to, the minimum income requirement has been based on in-depth analysis and advice from the independent Migration Advisory Committee.

I turn to some of the points about differentials across the United Kingdom. The Migration Advisory Committee found no clear case for differentiation in the level of the minimum income requirement between the UK’s countries or regions. A single national threshold provides clarity and simplicity. Data also show that the gross median earnings in 2018 exceeded the minimum income requirement in every country and region of the United Kingdom.

--- Later in debate ---

[Holly Lynch]

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.

[Kevin Foster]

I again thank the hon. Member for Cumbernauld, Kilsyth and Kirkintilloch East and his colleagues for tabling amendment 14 and allowing us to have this discussion. As the hon. Gentleman has said, the amendment would require the Government to include in regulations, made in consequence of this Bill ending EU free movement law, lifetime rights for UK nationals to bring their close family members to the UK on EU free movement terms, where the UK national was resident in the EEA or Switzerland in accordance with EU law by the end of the transition period at the end of this year. Those family members would thereby continue indefinitely to bypass the immigration rules that otherwise apply to family members of UK nationals.

I will set out the Government’s policy for this cohort of family members before I explain our reasons for rejecting the amendment. In certain circumstances, family members of UK nationals who have resided together in the EEA or Switzerland are able to come to the UK under EU free movement law. That applies where a UK national has exercised free movement rights in the host state—as a worker or self-employed person, for example—for more than three months. That is sometimes referred to as the “Surinder Singh route”, after the relevant judgment of the Court of Justice of the European Union.

Surinder Singh family members are not protected by the withdrawal agreement, as was said. None the less, as a matter of domestic policy, the Government decided that UK nationals resident in the European Economic Area or Switzerland under EU free movement law until the end of the transition period, which is the end of this year, will have until 29 March 2022 to bring their existing close family members—a spouse, civil partner, durable partner, child or dependent partner—to the UK on EU law terms. The family relationship must have existed before the UK left the EU on 31 January 2020 unless the child was born or adopted after that date, and it must continue to exist when the family member seeks to come to the UK, for obvious reasons.

--- Later in debate ---

[Holly Lynch]

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.

[Kevin Foster]

This has been a useful debate. As has been pointed out, amendment 16 would require the Government to establish a declaratory system for those eligible for residence rights under the withdrawal agreement or the immigration rules for the EU settlement scheme. That was touched on by the hon. Member for Cumbernauld, Kilsyth and Kirkintilloch East, who speaks for the SNP. It is a familiar argument we have been having over the last couple of years, and I suspect we will continue having it over the next year or two.

As the hon. Member alluded, EEA and Swiss citizens resident in the UK by the end of transition period and their family members can secure their rights here through the EU settlement scheme and through applications that are free of charge to make. So far, more than 3.5 million applications have been received and more than 3.2 million concluded, despite the efforts of one or two people to encourage people not to take part, as my hon. Friend the Member for Moray highlighted. This is with still more than a year to go before the deadline for applications on 30 June 2021 for those resident here by the end of the transition period on 31 December.

It is worth pointing out that the UK’s immigration system has long been predicated on individuals applying to the Home Office to be granted leave to enter or remain, under what we call a constitutive system. The Government have repeatedly made it clear that the constitutive system, introduced through the EU settlement scheme, is the best approach to implementing the citizens’ rights elements of the withdrawal agreements. It provides EEA citizens and their family members with clarity about what they need to apply for and by when, and with the secure evidence of their status that they need.

A requirement to apply for individual status by a deadline provides a clear incentive for EEA citizens living here to secure their status in UK law and obtain evidence of this, whereas a declaratory system, under which individuals acquire an immigration status under an Act of Parliament, would significantly reduce the incentive to obtain and record evidence of status. Indeed, the amendment does not include any requirement to do that, so in decades to come it could result in some of the issues we saw in the Windrush scandal: people with a status that has been granted, but for which there is no clear or recorded evidence.

[Stuart C. McDonald]

I am happy to take on board what the Minister says and redraft the amendment to include, for example, a £50 fine if somebody does not have a document proving their settled status. That would be much less serious than leaving them without any right to be in this country at all. Would he consider a declaratory system on that basis?

[Kevin Foster]

Well, I do not think I would. Like I said, we would be reasonable in accepting late applications—for example, if somebody did not have EU settled status because they were a child in care or mentally incapable at the time when they should have applied. I suspect that when we publish the guidance those two situations will be among the list of reasonable reasons for late applications. It would be rather odd, however, to then issue them with a £50 fine. We think it right that at some point a line be drawn, although we would be reasonable in respect of the circumstances of a late application. Certainly, in the early stages after the deadline, it is likely that the bar to cross will be fairly low, in terms of what is a reasonable reason for not having made the deadline.

As was touched on, we are up to more than 3.5 million applications already. It has been a very successful scheme. It is slightly ironic that the organisation representing EU citizens in the UK calls itself the3million, because the Home Office has already found 3.5 million and there is still a good stream of applications coming in every day, as there has been throughout the recent period. The Government are confident that we have already found many more than 3 million, and all of them are our friends and neighbours. We want them to stay, and we welcome the fact that they have taken the opportunity to apply to the European settlement scheme to guarantee their rights.

The Government are adamant that we must avoid a situation where, years down the line, EEA citizens who have built their lives here find themselves struggling to prove their rights and entitlements in the UK. That is why we have set up this system. I fundamentally believe that changing a system that is working well would have the opposite effect to that which the amendment is intended to achieve. It would reduce the certainty of a grant of status under the EU settlement scheme, which has already been given to more than 3 million EEA citizens and their family members.

The amendment provides that a right of permanent residence would be automatically acquired by EEA citizens resident here before 5 March 2020—when the Bill was introduced—regardless of how long they had been continuously resident in the UK. I do not wish to speculate about why the amendment is designed to exclude people who arrived on 6 March, or about why the Bill being introduced is a more significant moment than the end of the transition period or the day that Britain left the European Union. The general requirement under the EU settlement scheme to have been continuously resident here for five years before becoming eligible for a right of permanent residence—settled status—reflects the rights under the free movement directive, which are protected by the withdrawal agreement. To reassure hon. Members that we are talking to people who work with the EUSS, there will be efforts put in place, using the contact details provided to the EUSS, to prompt people should they be approaching the five-year period.

It is right that someone should demonstrate sufficiently long residence in the UK, in line with our current EU law rights, before being eligible for all the benefits and entitlements that settled status brings, including access to those provided by public funds. The amendment would mean that any length of residence in the UK prior to 5 March 2020, however short, would be sufficient. I do not believe that is the right approach. It is a rather strange date to choose, even though it is the introduction. Why would that be logical? It is worth explaining why someone was not covered on 6 March but was covered on 5 March. I therefore suggest to the Committee that we should not accept the amendment; we should stick with a system that is working and doing a great a job at getting those who are our friends and neighbours the status they need for the long term and the surety that brings. I therefore suggest that the hon. Member for Cumbernauld, Kilsyth and Kirkintilloch East withdraw his amendment.

[Stuart C. McDonald]

Again, I am grateful to the Minister for his reply. The amendment would not negate the good work that has happened in managing to process applications from EU nationals and provide them with digital proof of their status; it would build on it.

The Minister always insists that such a system would give people less of an incentive to apply, but that is just not the case. We would not say to anyone who was a victim of the Windrush fiasco that they did not have an incentive to apply for documentary proof. In fact, all the Windrush citizens had the right to be in this county, but that was not enough. They had to get documents, and the result of not being able to access documents was that they went through absolute hell. That is a lesson that we must learn. If we make the system declaratory, people will still apply because they need digital proof of their status to access work, social security, education and whatever else.

I do not accept the Minister’s explanation of why we retain the constitutive system. If he wants to talk about incentives, there is a big problem for anyone who misses the deadline of 30 June 2021. When they find out that they have missed it, they suddenly think, “I thought I was British, but I am not. I thought I had rights here because I had status under the old EU system, but it turns out I don’t.” Those hundreds of thousands of people will be absolutely petrified of applying to the Home Office because they have no assurance that they will be granted status here. There are vague words about being reasonable, but that did not really cut it for the Windrush generation, and this is a much bigger problem. I will press the amendment to a vote.

Question put, That the amendment be made.

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

Kevin Foster Excerpts

Committee stage & Committee Debate: 3rd sitting: House of Commons
Thursday 11th June 2020 Public Bill Committees

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

It is a pleasure to serve under your chairmanship, Sir Edward, and I will take on board the comments you have just made. If you will permit me, I would like to make a few introductory remarks—at the start of Committee proceedings and before we begin to debate the detail—on the purpose of the clauses.

The Bill delivers the ending of free movement of people and lays the foundations for introducing a fairer, firmer skills-led immigration system. The coronavirus pandemic is the biggest crisis we have faced in our lifetime. We need people, regardless of nationality, to continue coming together, using their skills and expertise to support the United Kingdom’s recovery.

As you will know, Sir Edward, legislating is not an academic exercise; there must be a point to it. The point is that we will introduce a new system by ending preferential treatment for EEA citizens. That will mean a system that prioritises the skills people have to offer and how they will contribute to the United Kingdom, not where their passport comes from.

The Government recognise the tremendous contribution people are making to keep vital services running during this incredibly difficult time and the dedication shown by millions demonstrates to employers the skills and work ethic we have here. Colleagues may well recall that this Bill was introduced in the previous Parliament. There have been no substantial changes to the content since it was previously considered. The only changes made are minor drafting clarifications in places and updates to the list of retained EU law to be repealed.

We remain committed to delivering a points-based immigration system that benefits the whole UK from January 2021. We will open key routes from autumn 2020, so people can start to apply ahead of the system taking effect on 1 January 2021. I want to clarify that the details of the future system will be set out in the immigration rules and not in the Bill, as is the case now for the non-EEA immigration system and has always been the case under previous Governments. The rules will be laid before Parliament later this year.

Turning specifically to clause 1, this introduces the first schedule to the Bill, which contains a list of measures to be repealed in relation to the end of free movement and related issues. The clause fulfils a purely mechanistic function to introduce the schedule.

[Holly Lynch (Halifax) (Lab)]

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.

--- Later in debate ---

[Kevin Foster]

I will reply briefly. I recognise the position of the Scottish National party on the Bill and on these particular proposals. There is a fundamental difference, but I assure the hon. Gentleman that he is always worth listening to, even when we disagree. He laments the absence of the tourism and hospitality industries on Tuesday. Regardless of our views on the Bill, we all look forward to an era when those industries will be able to think about recruiting again, rather than being in the position that we expect them to be in of significant job losses, including in my constituency, over the coming weeks and months, given the impact of recent weeks.

To turn to the comments of the hon. Member for Halifax, I was listening on Tuesday to the evidence from Professor Brian Bell, interim chair of the MAC, particularly on social care, and I cannot remember him saying that a general route for employers in the social care sector to recruit abroad at or near the minimum wage would be good news for the social care sector. In fact, I think he said precisely the opposite. To be clear, the general salary threshold is being reduced to £25,600, but where an occupation is deemed to be in shortage, it will be subject to a lower salary level of £20,480 a year.

It is also worth pointing out that for more than 20 categories of healthcare professional and allied healthcare professional, their eligibility will be based on the national salary scales paid in the NHS, rather than the general salary scales set out in the wider immigration rules. That is linked to the creation of what we are looking at as a healthcare visa to give fast-track access and reduced fees to people under that scheme. It is important that we keep placing those facts on the record so that people are aware of them, given some of the not very well informed commentary we have seen in the media, such as the claim that nurses will not be eligible, when in fact they will be fast-tracked and prioritised under our system.

[Holly Lynch]

I am concerned that the Minister has put words in my mouth in relation to what the MAC said about social care. What we did hear loud and clear from a number of witnesses, however, was that there is no plan to address workforce issues in social care when free movement ends. Is he minded to have specific remedies for social care in his future plans, before we end free movement?

[Kevin Foster]

Again, if people think, from what we have seen in the last few weeks, that the remedy for social care is to recruit more people at or near to the minimum wage from abroad, that is an odd conclusion to draw.

[Holly Lynch]

Domestically.

[Kevin Foster]

We will certainly talk to the Employment Minister. Again, I am conscious of the scope of the Bill and not going off more widely into our labour market strategies.

One conversation I recently had with the Employment Minister was about how, sadly, a lot of people in my constituency, and I am sure in the hon. Lady’s constituency as well, need to find new employment opportunities. Social care, and the healthcare sector more widely, will be part of providing some of those opportunities, not just through entry level jobs, but by ensuring that education, colleges and others are training people towards skilled jobs and providing real career progression.

For me, that is the solution for social care, rather than looking to the migration system as the overall labour market solution. I am sure we all share the sentiment, whatever any of us thinks of ending free movement, that the sector needs to be more invested in and more valued, and that there need to be clearer paths of career progression that people can see when they are deciding what they want to do for a job and a career.

I am conscious, Sir Edward, of what you said about the scope of the Bill. We could have an interesting discussion about the overall labour market strategy, but for now, this is a focused debate about why clause 1 is important and delivers the core of what the Bill is about.

Question put, That the clause stand part of the Bill.

--- Later in debate ---

[The Chair]

Before I call the Minister, does anybody else wish to speak? In that case, over to you, Minister.

[Kevin Foster]

Thank you, Sir Edward. I just thought I would be courteous, in case there was another hon. Member who wished to speak.

Amendment 18, which stands in the name of the hon. Member for Cumbernauld, Kilsyth and Kirkintilloch East, and his colleagues, would remove paragraph 4(2) from schedule 1 to the Bill, which disapplies provisions of the workers regulation, which conflict with domestic immigration law. This would mean that the UK remained bound by EU law in relation to the rights of EEA citizens to access the UK’s job market, which might in part be the hon. Gentleman’s intention, given his well-known view on that subject.

The Government, therefore, cannot support this amendment, because it would effectively result in free movement rights for workers and their families continuing after the end of the transition period. The Government are committed to ending the free movement of people now that we have left the EU, so therefore this proposal is incompatible with that. The Government are committed to ending the free movement of people now that we have left the EU, so therefore this would be incompatible with that.

We have made it clear that we will bring free movement to an end on 1 January, and introduce an effective and fairer points-based immigration system that takes into account the needs of the whole of our United Kingdom and works for the whole of our United Kingdom. It will be a system that reflects the skills and contributions that someone has to offer, not where the person comes from.

[Stuart C. McDonald]

The Minister is right that I would love to see all these rights retained, but that is not the motivation behind this amendment. I accept that the Government want to go about repealing some rights, but the Bill does not really do that. It says, in a peculiar way, that the rights are “sort of repealed” and one has to check back through immigration legislation for decades to work out to what extent. Why has it been done in this way rather than setting out specifically which rights are retained and which are not?

[Kevin Foster]

The answer is partly that it is not possible to draw up an exhaustive list of directly affected law in terms of the EU because court judgments will affect that. One reason for the wording is to make it clear that it relates to the Immigration Act 1971 and does not create a wider enabling power around the workers regulation. I am also clear that those who are subject to the withdrawal agreement are covered by those provisions.

During the passage of the European Union (Withdrawal Agreement) Act 2020 we discussed in great detail the provisions for protecting the rights of EEA citizens resident in the UK by the end of the transition period, which is 31 December this year. The EU settlement scheme, which was fully opened on 13 March 2019, was specifically introduced for this purpose. One of the rights protected by the status granted under the scheme is equality of access to employment, benefits and services, in the manner outlined by the workers regulation.

Retaining sub-paragraph (4)(2) of schedule 1 will in no way compromise our commitments to upholding the rights of resident EEA citizens already working in the United Kingdom. It will simply ensure other provisions of the workers regulation, which are not specific to immigration, do not have ongoing effects on UK immigration law, but continue to have their effects for other purposes, hence the wording of the sub-section. Otherwise the UK would be required, for example, to provide all EEA citizens with an offer of employment as though they were British citizens, meaning they could not be subjected to any restrictions on access in the UK labour market, directly undermining the new points-based immigration system, which will not provide preferential treatment for EEA citizens.

The changes made by sub-paragraph (4)(2) only relate to immigration aspects of the workers regulation and will not affect any other rights provided by that regulation. For example, the right to equal treatment in respect of positions of employment and work, and the right to join a trade union are unaffected by the provision, because this Bill is not the appropriate vehicle in which to consider them or to look for a power to alter or amend them.

It is less than six months since the British people voted to take back control of our borders and introduce a new points-based system to control immigration, which will deliver for the UK for years to come. This provision, ending the immigration rights provided by the workers regulation, is one the steps needed to pave the way for the new system. For those reasons, the Government cannot support this amendment and I ask the hon. Gentleman to withdraw it.

[Stuart C. McDonald]

I thank the Minister for his explanation. I absolutely understand what the Government are trying to achieve and that some of the rights in the workers directive have been put in legislation, including in the European Union (Withdrawal Agreement) Act 2020. However, that is not the point that this amendment is trying to make. The point is about how the Bill is—or is not—going about repealing the workers directive.

It is essentially a point about the rule of law. When I intervened, the Minister said that it would not be possible to draw up an exhaustive list of exactly how these rights were affected by Immigration Acts and other provisions. If the Government cannot do that, how on earth is the ordinary citizen supposed to be able to tell what their rights are? I think we should take this paragraph out of the schedule and, if the Government are unhappy with the implications that has in leaving things on the statute book, they should come back on another occasion with a clear list and fix it that way. I would like to push the amendment to a division.

Question put, That the amendment be made.

--- Later in debate ---

[Kate Green (Stretford and Urmston) (Lab)]

It is a pleasure to serve under your chairmanship, Sir Edward. I would like to ask the Minister some questions about paragraph 6 of schedule 1, which potentially disapplies any retained EU law relating to the immigration context. It is a similar set of questions to those we were discussing a moment ago in relation to amendment 18, but with a different focus. It arises from evidence that was given to us on Tuesday afternoon by Adrian Berry on behalf of the Immigration Law Practitioners’ Association, which I thank for its help in preparing for this Committee.

I apologise that it was not possible to get an amendment tabled on this paragraph. As my hon. Friend the Member for Halifax pointed out, we have been doing a number of things in relation to this Bill at a rush, and we did not have the transcript of Tuesday afternoon’s sitting until last night. I am very grateful to the Hansard writers for the work they have been doing—I know they have a lot of Bills on—but that has caused part of our problem.

My concern is that the breadth of the wording in paragraph 6 could lead to the repeal of legal protections that go far beyond the realm of free movement, which is the purpose of this Bill. I hope the Minister may be able to put some assurances on the record in relation to my concerns about the Government’s future intentions. As we heard a few moments ago, certain provisions of EU law, as retained EU law, have been brought within UK law by a number of different instruments—some EU law has been brought into domestic law through statutory instruments and so forth. They are saved by section 2 of the European Union (Withdrawal) Act 2018. Direct EU legislation is saved as retained EU law by section 3 of the 2018 Act. It is explicitly defined and does not include treaties or directives; it is things such as EU regulations with direct applicability.

Any other powers, liabilities, obligations, restrictions, remedies and procedures that could be enforced in the UK because of EU law are carried over by section 4 of the 2018 Act. That includes things like treaties and directives that are directly effective. It is, however, important to note that section 4(2)(b) limits the enforceability of directives to the extent that retained EU law is only the rights, powers, liabilities, obligations, restrictions, remedies or procedures arising under an EU directive that are of a kind that have been recognised by the European Court or any court or tribunal in the United Kingdom in a case decided before the end of the transition period.

Paragraph 6 of schedule 1 disapplies those provisions of EU law to the extent that they are either inconsistent with or otherwise incapable of affecting the interpretation, application or operation of any provision made by or under the Immigration Acts, or otherwise capable of affecting the exercise of functions in connection with immigration. The problem is that the carve-out basically all EU immigration law retained by virtue of paragraph 4, because

“capable of affecting the exercise of functions in connection with immigration”

could basically mean just about anything. The question I am asking the Minister is what EU law that paragraph applies to. What exactly are the Government trying to target?

We get some help from paragraphs 68 and 69 of the explanatory notes to the Bill, which suggest the Government may be trying to affect what we have come to call derived rights cases, in the free movement context. For example, cases of so-called Zambrano carers. These are situations where the European Court has recognised that, because of rights within the European treaties available to European nationals, certain rights must be given to those nationals and their family members or carers in order to ensure that the European national can actually enjoy their EU rights. I accept that, if one is trying to get rid of free movement, as the Bill is, these categories would need to be removed from UK law. That is exactly what ending free movement means, but if that is the scope of the Government’s intentions, it should be much clearer in the Bill.

Unfortunately, paragraph 6 goes much wider than that, addressing not only provisions made under the Immigration Acts, as the Minister suggested a few moments ago, but any matter capable of being seen as in connection with immigration. That could include, for example, the anti-trafficking directive, which prohibits removal of a victim of trafficking if they never received sufficient support and assistance under article 11 of the directive. Other directives that could be caught under involving the exercise of functions in connection with immigration include the reception conditions directive, which supports asylum seekers, the EU victims’ rights directive, and potentially others.

One way of protecting all these directives would be simply to say that paragraph 6 of schedule 1 does not affect directives that form part of retained EU law. After all, the Government’s own explanatory notes do not identify any directives that they wish to disapply in the immigration context, even though I accept that the list in paragraph 69 is described as non-exhaustive. Alternatively, the Government could list the directives specifically to be protected, as set out in the explanatory notes, directly within schedule 1 of the Bill.

I have to say that if the Government do not follow either of those paths, vital protections for vulnerable people could be at risk of becoming collateral damage in the ending of free movement. I am absolutely not suggesting that the Government intend to remove those protections, but if they do not intend that, I hope the Minister can give us clear assurances to that effect today and explain why they appear to fall within the scope of the Bill as drafted.

As things stand, the breadth of the language in paragraphs 6 and a lack of sufficient objective parameters to ascertain its intended targets make it impossible to accurately predict which areas of retained EU law could be affected by the Bill. That is exactly the problem we were discussing a moment ago in relation to paragraph 4. It raises fundamental legal concerns. Migrants and their representatives, Home Office caseworkers and judges must be able to ascertain with a reasonable degree of certainty what the law is. Indeed, that is one of the core lessons learned from the Windrush review carried out by Wendy Williams. I do not believe that this provision meets that standard.

[Kevin Foster]

I thank the hon. Lady for her speech and her interest in this section of the Bill. To be clear, paragraph 6 disapplies the directly effective rights deriving from the EU law that will form part of retained EU law at the end of the transition period if they are inconsistent with immigration legislation or affect immigration practices. They are being repealed so that people cannot in the future attempt to rely on such directly effective rights to bypass the system to enter and reside in the UK, other than under the points-based system. We have been clear that provision will be made in the EU settlement scheme for those currently exercising their EU derivative right of residence in the UK, and that has now been provided, as I touched on.

Some people have asked for examples of rights that paragraph 6 would disapply. They include the rights of Turkish nationals to preferential immigration treatment under the European Economic Community-Turkey association agreement. They also include, as the hon. Member for Stretford and Urmston said, derivative rights of residents under EU law such as Zambrano carers, and the Chen, Ibrahim and Teixeira cases, which will cease from the day that paragraph 6 comes into force. Those rights stem directly from the treaty on the functioning of the EU and need to be disapplied because otherwise people could continue to cite and rely on them to bypass the future immigration system.

The Government do not intend to use the provisions to avoid our responsibilities under international law. We are very clear that our system of protection routes will continue to operate separately from the system of migration rules, as they always have. Family migration will not form part of the points-based system; it will be based on the family migration rules. The wording has to be the way it is so that the paragraph is not too wide in scope. This is about citing it in relation to immigration—trying to cite an EU right to work in the UK rather than applying the provision in a situation where we would, for example, be breaching our international obligations. As I said during the evidence session on Tuesday, under statutory instruments and regulations, Ministers cannot act against international law. We could have a long constitutional debate about whether Parliament can still pass primary legislation in relation to international law, but that is probably not relevant to this particular schedule.

In essence, the schedule is about being clear that it will not be possible to use a range of rights to undermine the points-based immigration system that we are putting in place. We want to make it clear that EEA and non-EEA citizens should look to migrate under the points-based system.

Question put, That the schedule be the First schedule to the Bill.

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Question proposed, That the clause stand part of the Bill.

[Kevin Foster]

I do not expect this clause to be controversial, but given some of the evidence that we heard, it may be useful to set out one or two responses, especially the Government’s long-standing policy on deportation of Irish nationals. As Committee members will know, clause 2 protects the status of Irish citizens in the UK when free movement ends. British and Irish citizens have enjoyed a unique status and specific rights in each others’ countries since the 1920s as part of the common travel area arrangements.

Under clause 2, when free movement ends, Irish citizens will continue to be able to come to the UK without permission or restrictions on how long they can stay. British citizens, as you are probably aware, Sir Edward, enjoy reciprocal rights in Ireland, again reflecting the unique historical position of the Republic of Ireland and the UK.

The clause provides legal certainty and clarity for Irish citizens by inserting a new section 3ZA into the Immigration Act 1971. New section 3ZA will ensure that Irish citizens can enter and remain in the UK without requiring permission, regardless of where they have travelled from. This is already the position for those entering the UK from within the common travel area, but Irish citizens travelling to the UK from outside the common travel area currently enter under EEA regulations. This clause will remove that distinction by giving Irish citizens a clear status once free movement ends. While that may not have been impactive, it is there in a technical, legal sense, which is why this clause is necessary.

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[Stuart C. McDonald]

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.

[Kevin Foster]

I thank the SNP and Labour spokespersons for their overall support of the clause. I think I have been clear that there is a very strong commitment to the common travel area. Elements of its operation are inevitably required due to the provisions of the Belfast agreement, which is actually international law; it is a treaty between the United Kingdom and the Republic of Ireland, so it is not something that can just be amended on a whim. Far from it—it is underpinned by the strong consent of both communities, north and south, as expressed in referendums at the time it went through.

The commitment of both Governments to the common travel area has persisted for decades and will continue to do so. Irish citizens can apply to the European settlement scheme. I do not see any detriment that would come to them from doing so, but neither is there a requirement for them to do so, given the clarity that the clause brings to their rights within the United Kingdom. To be absolutely clear, the clause looks to remove that difference in the technical definition between an Irish citizen who has arrived in the United Kingdom on, for the sake of argument, the Eurostar from France, as opposed to arriving in the United Kingdom on a plane from Dublin.

It is probably worth saying that it would be interesting to work out how that definition could have actually affected someone’s life, apart from some of their more theoretical rights. However, I will be clear on that front that the Bill removes that difference. For an Irish citizen within the United Kingdom, it applies regardless of which country they travel from—whether they have travelled to the United Kingdom from within the common travel area or, for example, from the United States of America—[Interruption.] I am glad that the hon. Member for Halifax was reassured by that.

Effectively, Irish citizens become identified —I accept that this is perhaps a slightly controversial thing to say in the context of people’s identity—as British in our system of migration. Effectively, their Irish passport becomes equivalent to a UK national’s passport.

As for the provisions around deportation, I was asked whether there was a particular example. My officials in the Home Office have spent some time over the last week or two trying to find an example under current legislation —not under legislation, perhaps, from previous eras—of someone being deported from the United Kingdom to the Republic. We struggled; so far, I cannot find a specific example. I do not see any Member of the Committee who is about to jump up and give me an example, in order to contradict me on that point.

In particular, we are not aware of there ever having been, even at the heights of the troubles, a particular stream of deportation from Northern Ireland into the Republic. Partly, that is because we would all have to question the practical effect of deporting someone from County Londonderry to County Donegal; how on earth would anyone effectively enforce that in any way? Also, however, the spirit between the two Governments has been very much that we respect the rights of those who are there and, to be clear, that is set out in a 2007 written ministerial statement. That was not done under a Government formed by my party. The written ministerial statement has been there for 13 years. I wrote to the Irish Government about the fact that the provisions were in the Bill, and we have not received negative representations. The minimum threshold would have to be an offence that carried a 10-year prison sentence, so we are talking about very serious criminal offending, or the court would have to recommend it.

--- Later in debate ---

Question proposed: That the clause stand part of the Bill.

[Kevin Foster]

The clause is minor and technical in its nature, but it is important for the implementation of the Bill and for a fully functioning statute book. Effectively, it states that the Bill will be one of the Immigration Acts. I commend the clause to the Committee.

[Holly Lynch]

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

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

Kevin Foster Excerpts

Committee stage & Committee Debate: 5th sitting: House of Commons
Tuesday 16th June 2020 Public Bill Committees

[The Chair]

Obviously, we will maintain social distancing. Like last week, the Hansard reporters would be grateful if Members sent copies of their speeches to hansardnotes @parliament.uk. We will continue line-by-line consideration of the Bill—the selection list is available in the room.

Clause 5

Power to modify retained direct EU legislation relating to social security co-ordination

Question proposed, That the clause stand part of the Bill.

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

It is a pleasure to serve under your chairmanship, Sir Edward. Given the nature of the clause, I will spend a few minutes outlining its impact to the Committee. The clause and associated schedules 2 and 3 provide an essential legislative framework to ensure that the Government can make changes to our social security system when the transition period ends, alongside the launch of the future immigration system. The provisions will enable the Government to amend the retained European Union social security co-ordination rules and to deliver policy changes from the end of the transition period.

The clause provides a power to the Secretary of State, the Treasury or, where appropriate, a devolved authority to modify the social security co-ordination regulations. Those EU regulations provide for social security co-ordination across the European economic area, and will be incorporated into domestic law by the European Union (Withdrawal) Act 2018 at the end of the transition period. Clause 5(4) gives the Government the ability to make necessary consequential changes to other primary legislation and other retained EU law to ensure that the changes given effect by the main power are appropriately reflected. That power may be used, for example, to address technical matters, inoperabilities or inconsistencies. Schedule 2 sets out the power of the devolved authorities under clause 5.

This social security co-ordination clause confers powers on Scottish Ministers and the relevant Northern Ireland Department to amend the limited elements of the social security co-ordination regulations that fall within devolved competence. It is important that we provide the devolved Administrations with the powers that they need to amend the aspects of the regulations for which they are responsible, just as it is right for the UK Government to have the powers for the laws that affect the UK as a whole. The powers are equivalent to those conferred on UK Ministers and will allow the devolved Administrations to respond to the UK’s withdrawal from the EU in areas of devolved competence, either to keep parity with Westminster or to deviate in line with their own policies.

Without the powers in the Bill, the devolved Administrations would need to bring forward their own parallel legislation to give them equivalent powers to amend the retained EU social security co-ordination regulations in areas of devolved competence. Before the Bill was introduced, letters were sent to the devolved Administrations to seek legislative consent in principle, in line with the Sewel convention.

Schedule 3 provides further detail on the form that regulations will take under the clause, whether as statutory instruments, statutory rules or Scottish statutory instruments. The schedule provides that the use of the power is subject to the affirmative procedure. It also gives clarity on the procedures that the devolved Administrations will need to follow. Paragraph 5 permits other regulations, subject to the negative procedure, to be included in an instrument made under the clause.

Without the clause and associated schedules 2 and 3, the Government and relevant devolved authorities will have only the power contained in the 2018 Act to fix deficiencies in the retained system of social security co-ordination, restricting our ability to make changes. I reassure the Committee that the power in the clause will not be exercised to remove or reduce commitments made either in relation to individuals within the scope of the withdrawal agreement, for as long as they remain in the scope of that agreement, or in relation to British and Irish nationals moving between the UK and Ireland.

We are currently in negotiations with the EU about possible new reciprocal arrangements on social security co-ordination, of the kind that the UK has with countries outside the EU. The clause will enable the UK to respond to a variety of outcomes in those negotiations, including when no agreement is achieved by the end of the transition period. The clause will be necessary to deliver policy changes to the retained regime that will cover individuals who fall outside the scope of the withdrawal agreement, to reflect the reality of our new relationship with the European Union.

The Government have been clear that there will be changes to future social security co-ordination arrangements, including, as announced at Budget 2020, stopping the export of child benefit. The social security co-ordination powers in the Bill will enable the Government to deliver on that commitment and to respond to the outcome of negotiations with the EU to deliver changes from the end of the transition period. I therefore beg to move that clause 5 stands part of the Bill and that schedules 2 and 3 are agreed to.

[Kate Green (Stretford and Urmston) (Lab)]

Good morning, Sir Edward. It is a pleasure once again to serve under your chairmanship. Social security arrangements set out in EU regulation 883 of 2004 and elsewhere are currently directly applicable in the UK. They cover the co-ordination of social security, healthcare and pension provision for people who are publicly insured who move from one EU state to another.

The regulations ensure that individuals who move to another EEA are covered by the social security legislation of only one country at a time and are, therefore, liable only to make contributions in one country; that a person has the rights and obligations of the member state where they are covered; that periods of insurance, employment or residence in other member states can be taken into account when determining a person’s eligibility for benefits; and that a person can receive benefits that they are entitled to from one member state, even if they are resident in another.

The co-ordination regulations cover only those social security benefits that provide cover against certain categories of social risk, such as sickness, maternity, paternity, unemployment and old age. Some non-contributory benefits fall within the regulations but cannot be exported, and benefits that are social and medical assistance are not covered at all. Universal credit, for example, is excluded.

As we heard from Jeremy Morgan of British in Europe in his oral evidence to the Committee last week, most UK nationals resident in the EU are of working age. It is important to note that the number of people claiming the working-age benefits that are covered by the regulations—jobseeker’s allowance or employment and support allowance—has declined sharply since the introduction of universal credit. We might therefore expect social security co-ordination arrangements to apply to a declining number of working-age adults. The regulations will, however, still be of importance for a sizeable number of individuals, and not least for pensioners.

The co-ordination regulations also confer a right on those with a European health insurance card to access medically necessary state-provided healthcare during a temporary state in another EEA state. The home member state is normally required to reimburse the host country for the cost of the treatment. Under the European Union (Withdrawal Agreement) Act 2020, protection of healthcare entitlements is linked to entitlement to cash benefits.

Clause 5(1) provides an appropriate authority with the power to modify the co-ordination regulations by secondary legislation. The power is very broad, placing no limits on the modifications that appropriate authorities are able to make to the co-ordination regulations. By virtue of subsection (3), the power explicitly

“includes power—

(a) to make different provision for different categories of person to whom they apply…

(b) otherwise to make different provision for different purposes;

(c) to make supplementary…consequential, transitional, transitory or saving provision;

(d) to provide for a person to exercise a discretion in dealing with any matter.”

The power is further enhanced by subsection (4), which provides for the ability to amend or repeal

“primary legislation passed before, or in the same Session as, this Act”

and other retained direct EU legislation.

Since the UK left the EU at the end of January this year, the relevant EU regulations pertaining to social security, pensions and healthcare have been retained in UK law by section 3 of the European Union (Withdrawal) Act 2018. I accept that the Government need to be able to amend co-ordination regulations to remedy deficiencies in them resulting from the UK’s exit from the EU, but the 2018 Act already contains a power in section 8 to modify direct retained EU law. Indeed, the Government have already exercised this power for four of the co-ordination regulations. Any changes that do not fall within the scope of the power in section 8 of the 2018 Act must necessarily, therefore, not relate to any ability for the law to operate efficiently or to remedy defects, but be intended to achieve wider policy objectives. I think the Minister acknowledged as much in his opening comments.

I was, however, surprised that the Minister said that only the European Union (Withdrawal) Act 2018 provided such powers. My reading of the legislation is that the Secretary of State has further powers as regards social security, healthcare and pension rights for those who are protected by the withdrawal agreement under the European Union (Withdrawal Agreement) Act 2020. Section 5 of that Act inserts new section 7A into the 2018 Act so as to secure withdrawal agreement rights in domestic law, and that protection is buttressed by section 13 of the 2020 Act, which confers a power to make regulations in respect of social security co-ordination rights protected by the withdrawal agreement. Given the powers that already exist under the European Union (Withdrawal) Act and the European Union (Withdrawal Agreement) Act, as well as the fact that those powers have already been used by the Government, why does the Minister feel they are inadequate?

Paragraph 30 of the delegated powers memorandum is instructive. It states that the Government want to use the power in clause 5 to

“respond flexibly to the outcome of negotiations on the future framework and make changes to the retained social security co-ordination rules.”

--- Later in debate ---

As far as I can see, the issue raised this time last year has not been addressed in the Bill, which has simply been reintroduced as before. Will the Government comment on that and consider committing to amending the Bill so that there is at least a duty on UK Ministers to consult Scottish Ministers before choosing to exercise the clause 5 powers in relation to devolved social security competencies? I look forward to hearing what the Minister has to say in that regard.

[Kevin Foster]

I thank hon. Members for their contributions. On the powers under clause 5, the Government have been given clear advice that they are necessary, particularly when we look at the ongoing negotiations. There are two parties to the negotiations, and the purpose of having a wider scope is to reflect whatever the outcome of the negotiations is. Hopefully, we will quickly be able to implement an agreement, in the same way that we have an agreement with Ireland bilaterally in terms of the co-ordination of social security, given the unique position of Irish citizens in the UK and UK citizens in Ireland, who are considered settled from day one. That is where we are.

One of the examples Opposition Members gave was of those protected by the withdrawal agreement. It is worth noting that this measure looks towards those who arrive after the end of the transition period and starts to look towards changes there, rather than at those who specifically have their rights protected by the withdrawal agreement.

In terms of the scope and whether the powers would be used in a devolved area, the UK Government continue to respect the devolution settlement. We are in discussions —officials certainly are, and I and my colleague in the Department for Work and Pensions wrote to the relevant Scottish Minister last week to set out where we are. We hope to have a legislative consent motion from the Scottish Parliament, but we have also set out what the position is if we do not get an LCM—for the Committee’s benefit, the Government would amend the Bill on Report to remove the powers in relation to devolved matters in Scotland.

Fundamentally, the clause is intended to ensure that we can implement powers and make the changes necessary, as outlined, to deliver the specific policy changes that we made clear in our manifesto, particularly around the export of child benefit, and also to ensure that we do not end up in a bizarre position where the UK is trying unilaterally to implement what is meant to be a reciprocal system, should we not be able to get a further agreement or if we have an agreement but are not able quickly and promptly to implement it.

Again, I would point out that using the affirmative procedure means that both Houses of Parliament will scrutinise any regulations and will have the opportunity to block them if they felt they were inappropriate. To be clear, if a Minister made wholly inappropriate regulations, such matters in secondary legislation, unlike primary legislation, can be reviewed in the courts as well.

It is therefore right that we stick with the clause as it is, certainly to ensure that we can implement whatever the outcome of the agreement is, including if we need to look at putting in place a system that reflects the fact that there has not been a further agreement.

[Stuart C. McDonald]

I just want to clarify whether the Minister would at least consider putting in a requirement that, before UK Ministers exercise these powers in relation to devolved competencies, they would consult Scottish Ministers. A cross-party Scottish Parliament Committee made that recommendation this time last year. It is surely at least worthy of consideration before Report.

[Kevin Foster]

To be clear, we will continue with our position of respecting devolution in areas of social security, hence the respect we have shown to the Scottish Government by consulting them about the Bill. We have also set out the Government’s position, were there not a legislative consent motion from the Scottish Parliament, in the letter we sent last week to the relevant Scottish Ministers. Obviously, separate discussions are going on with the Executive in Northern Ireland.

This is the right process. Parliament still has the appropriate ability to scrutinise how the powers are used and, if it wishes, may block the use of those powers under the affirmative procedure. This is about ensuring clear certainty that we can deliver whatever we can agree with the European Union on, we hope, a continuation of a reciprocal arrangement, which we cannot do if we do not have the powers in the clause. In other areas, powers are more restricted.

These are wide powers, but that reflects the wide range of outcomes that are still possible in the next six months. It is right to have a functioning and effective social security system and co-ordination of it. That is why the Government have brought the power forward in this Bill, as in the previous one. We maintain that the clause and the attached schedules are appropriate to the Bill.

[Kate Green]

Does the Minister anticipate, in the event of an agreement and treaty before the end of this year, a further piece of primary legislation to give effect to that? If so, would it not be possible at least to encompass the principles agreed into that primary legislation?

[Kevin Foster]

A lot would depend on the nature of the agreement. If it is part of a wider treaty, we may well see further legislation. However, our understanding is that if we can achieve agreement on this area, we would look to implement it rapidly through regulation, which is why the power is in the Bill. Our priority would be to avoid a situation where something is agreed of benefit to both UK citizens going to live in the European Union and EEA citizens coming to live here, with which we and the European Union are happy, but we are unable to provide that benefit because we are still going through a parliamentary process to implement it. That is why we believe the clause to be appropriate. It allows us to react to circumstances as necessary.

Question put, That the clause stand part of the Bill.

--- Later in debate ---

[Kevin Foster]

I am grateful to the hon. Member for Cumbernauld, Kilsyth and Kirkintilloch East and his hon. Friends for tabling the amendment and new clause. Having said that, there was a certain predictability about them given the SNP’s aim of separating our United Kingdom and wish for borders to be created across this island.

I turn to some of the more specific points. I have had direct contact with the hon. Member for Na h-Eileanan an Iar. He is very passionate about the Gaelic language and the role it plays in contemporary life. I have also had representations from Ministers and Members in Wales about the strong role that the Welsh language plays in our culture today, enriching our Union as a whole. Certainly, we will see what we can do to incorporate Welsh, Irish and Gaelic into our migration system. It is probably worth noting that the vast majority of fluent speakers of those three languages are either citizens of the United Kingdom or the Republic of Ireland, and therefore effectively not subject to migration control; they have rights to live and work within the United Kingdom and settle in any part of it they choose.

It was interesting to hear the comments of the hon. Member for Halifax, my Labour shadow, about how separate systems would be enforced. Like me, she does not want to see an economic version of Hadrian’s Wall between England and Scotland, although I recognise that others on the Committee perhaps do.

We are looking at how to make the Migration Advisory Committee’s role responsive and how it can choose some of its own reports—we will come on to that when we discuss some of the new clauses. The issue is not purely about a commission. I am thinking particularly about how the MAC can send out a more regular drumbeat of reviews, and commentary on reviews, for the shortage occupation list. That should fit in with our wider labour market policies rather than being considered apart from our skills and training policies. I hope we can find some sensible consensus on that.

The MAC has launched its call for evidence for the shortage occupation list and the advice that it is going to give Ministers about the new points-based system. I hope people will engage with that; there is certainly good strong engagement from many businesses. It would be good to see the Scottish Government promote the idea that businesses in Scotland should be getting involved and positively engage in the process—not least given that the MAC has indicated its intention for there to be shortage occupation lists for each of the four nations of the United Kingdom. It will probably not be a great surprise if many of those are very similar, given the similar types of skill shortages across the United Kingdom.

I was interested to hear the comments from the hon. Member for Argyll and Bute, in particular the idea that we could start having immigration policy for individual council areas. That is interesting. It is worth saying that the MAC suggestion was about remote areas. We both went to see the first HM naval base on the Clyde, in his constituency; as he knows, he is not exactly remote from the vibrant heart of culture and economy that is Glasgow—that is rather different from the concept of, let us say, eastern and western Australia in terms of distance.

I will be very clear: a range of powers is available to the Scottish Government. If the same pull factors that created the challenges today still exist, this look into the migration system is not going to provide a solution. With other Members from Scotland, including my hon. Friend the Member for Moray, we have looked at the fact that there is a determined drive—luckily, the Scottish Government have the powers around economic development—to create those strong opportunities in communities. Ultimately, if we create a migration opportunity but the pull factors are still there and have not been addressed, the situation will become a revolving door. That is why we have to look at those core issues first —why people are moving out—and not just look to a migration system as a magic bullet for those problems.

[Brendan O'Hara]

At the risk of giving a geography lesson, I point out that when the Minister visited Argyll and Bute he visited the easternmost tip of the constituency, nearest to Glasgow. The constituency spreads over 7,500 sq km, has 26 remote island communities and is not part of the vibrant central belt hub. That is why it and many other areas of the highlands and islands of Scotland need a bespoke solution. The problems we face in Argyll and Bute are not those that many large conurbations in the United Kingdom face. There is a need to recognise that.

--- Later in debate ---

[Kevin Foster]

Perhaps the point has been made, then, that this is not about having an immigration system based on a council area, but about having one for an area smaller than that of a council. I think that that would lead to confusion, with multiple areas.

There are many issues across large stretches of the highlands, and also rural parts of the rest of the United Kingdom. The fact that there are challenges in ensuring that younger people in particular have opportunities, and options to stay, is a facet of the issue that is not unique to parts of Scotland. However, if we do not deal with the core issues, most of which fall under the remit of the devolved Administration in Edinburgh, those pull factors will still exist, and the migration system is not a magic cure for them.

[Stuart C. McDonald]

It is a question of having strategies in place to address the challenges, but I want to pin the Minister down on the question of the remote areas pilot. That is a recommendation from the MAC. Can the Minister say categorically that this morning he is ditching it, and that there will not now be a remote areas pilot scheme? That would be really bad news.

[Kevin Foster]

We made it clear in the policy statement that we put out in February that we were not planning a remote areas pilot. Again, the thing that we must focus on is that many of the pull factors exist. It is within the competence of the Scottish Government to deal with those issues, and to create something and tackle them.

I have seen how Members of Parliament in the north-east of Scotland, including my hon. Friend the Member for Moray and my hon. Friend the Under-Secretary of State for Scotland, the Member for Banff and Buchan (David Duguid), are pushing for the creation of those economic opportunities that they want in parts of rural Scotland. Perhaps the one hope that we have on this point is that there is a Scottish Parliament election coming next year. I hope that there will be a more business-focused, opportunity-based Administration in Edinburgh, which will be focused on developing Scotland, not separating it.

[Douglas Ross]

I agree wholeheartedly with the Minister’s point about the number of factors that are within the remit of the Scottish Parliament and on which the Scottish National party Government of Scotland have failed.

We have heard from SNP Members that they want their own immigration system. Indeed, the hon. Member for Argyll and Bute said that they would design and tailor one. Does the Minister share my concern that we heard similar reassurances from the SNP Scottish Government about social security—yet they had to tell the UK Government that they could not take those powers because they could not implement the changes quickly enough in Scotland?

[Kevin Foster]

My hon. Friend, as always, hits the nail straight on the head with his arguments. Yes, we had many demands for devolution of policy, but then the Scottish Government did not want to take them up. Suddenly there was a new group of Unionists wanting the United Kingdom Government to deal with something in Scotland.

[Stuart C. McDonald]

Will the Minister do us the favour of explaining how his immigration policies will make the challenges easier rather than harder for Scotland?

[Kevin Foster]

The first thing that our immigration policy will do is provide a points-based system on a global basis, based on RQF3 and on having a shortage occupation list. Businesses in Scotland can recruit globally on that basis. Also, we can look at the first reform, which we have already carried out—a route that I was pleased to launch in Glasgow. I have seen it at first hand—the best talent being brought into our universities, and particularly into the University of Glasgow. Under that system, on a global basis, teams can be recruited to tackle and research some of the most challenging questions that mankind faces. On the occasion in question the issue was tackling malaria, and the huge impact of that.

Those are the sorts of benefits we want: high value and high skill—the attractions are there. It is a vision for Scotland, whose natural beauty is second to none, based on skills and the attractiveness of a high-skill, high-value economy—not on saying that the main thing Scotland’s economy needs is the ability to put more people on the minimum wage on a global basis.

[Stuart C. McDonald]

The Minister mentions his visit to Glasgow all the time. While he was there, did he speak with Universities Scotland, which is among the organisations that has spoken out in favour of a differentiated system? This is not just coming from the SNP. The Minister has also spoken about the benefits of his new system, but his own risk assessment says that it will cause levels of immigration to Scotland to fall. How is that in Scotland’s interests?

[Kevin Foster]

We engage strongly with partners, particularly our high-compliance Scottish universities that are sponsors of tier 4 visas. We very much welcome the contributions they make, as well as those that they make as part of wider groups, such as the Russell Group, that operate on a UK-wide basis.

There are two visions, I suppose. There is one that my hon. Friend the Member for Moray and his colleagues from Scotland bring us: a high-productivity, high-value Scotland, an attractive place to live with a thriving economy, recruiting on a global basis. Then there is the Scotland that the Scottish National party brings us; the only reason someone would go there would be to pay low wages or recruit at, or near, the minimum wage on a global basis. That, to me, is not a particularly inspiring vision.

Many of the powers to deal with the pull factors that lead to depopulation in rural areas are already in the hands of the Edinburgh Administration. As with so many other things—this has been touched on in relation to social security—it is time to see the Scottish National party getting on with the job of governance, rather than the job of grieving or looking to separate the United Kingdom.

The hon. Member for Cumbernauld, Kilsyth and Kirkintilloch East will not be surprised to hear that the Government’s position has been made very clear on this issue, but I will briefly set it out again. Immigration and related matters, such as the free movement of persons from the EU, are reserved matters, and the immigration aspects of the Bill will therefore apply to the whole United Kingdom. The Government are delivering an immigration system that takes into account the needs of the whole of our United Kingdom and works for the whole of it, not for the political needs of those whose goal is its separation.

We do not believe that it would be sensible, desirable or workable to apply different immigration systems in different parts of the United Kingdom, and the independent Migration Advisory Committee has repeatedly advised that the labour markets of the different nations of the United Kingdom are not sufficiently different to warrant different policies. That was an independent report—the type that people seem to want, but then do not seem to want to listen to.

[Stuart C. McDonald]

Will the Minister give way?

[Kevin Foster]

No, I have given way many times. As we heard in the evidence sessions, the simplistic argument saying that Scotland is different from England for political reasons ignores the variation within Scotland itself, given the strength of the economy in Edinburgh compared with the economies of more rural areas.

I do not propose to address new clause 33 in detail; as I say, we have seen the MAC’s conclusions on this issue. The Government’s objection is one of principle: immigration is, and will remain, a reserved matter. We will introduce an immigration system that works for the whole of our country and all the nations that make up our United Kingdom by respecting the democratically expressed view of the people in the December 2019 general election and the 2014 vote of the Scottish people, which rejected separation. Both Alex Salmond and Nicola Sturgeon used the phrase “once in a lifetime” or “once in a generation” about that vote; now, only six years later, we see how short a generation has become. Free movement will end on 31 December, and we will introduce a points-based immigration system that ensures we can attract the best talent from around the world to Scotland, based on the skills and attributes they have, not where their passport comes from.

It will come as no surprise that SNP Members and I will have to agree to differ, as we regularly do on issues that relate to the constitutional future of Scotland. I obviously hope that the hon. Members for Cumbernauld, Kilsyth and Kirkintilloch East and for Argyll and Bute and the hon. and learned Member for Edinburgh South West will withdraw their amendments—although I have a sneaky feeling that they may not—and I particularly hope that others on this Committee who have also voiced their opposition to separatist politics will join the Government in opposing these amendments if they are put to a vote.

[Stuart C. McDonald]

I sort of thank the Minister for at least making a contribution, but I have to say that, having shadowed about six or seven immigration Ministers for five years, I think that is probably the most regrettable speech I have heard from any of them at any time; the second most regrettable was the one the Minister made during the Opposition day debate a few months ago. It might play well with some MPs in this place, but I watched the faces of some Scottish Conservative MPs that night, and they were not impressed.

The Minister is speaking not just to the SNP, but to business groups and public service organisations—a whole host of concerned organisations in Scotland. He might get away with it in this Committee, but he cannot really get away with dismissing their concerns as “nationalist nonsense” or “separatist rubbish”. These are very serious people with very serious concerns about the implications of his Government’s migration system for Scotland. It seems to be not so much a case of, “We hope it will be all right on the night”, but one of, “We don’t care—stuff you!”

--- Later in debate ---

[Kate Green]

I support the sentiments expressed by the hon. Members for Argyle and Bute and for Cumbernauld, Kilsyth and Kirkintilloch East. There have been considerable benefits to our faith communities from their ability to take advantage of freedom of movement and welcome EEA nationals into their communities. Faith communities, especially Churches of all denominations, have congregations with many EEA nationals among their membership and they are also often individuals who act as pastors, counsellors, youth workers and musicians.

As we have heard, many faith organisations have needed EEA nationals to cover short-term or sometimes longer-term appointments into leadership positions. That is especially true in areas where it has been hard to recruit. Free movement has also allowed faith communities some flexibility in terms of shared mission work, with UK nationals working overseas, undertaking mission trips, musicians performing in Europe at faith-based events or running camps and youth conferences. Faith communities have been able to bring EEA speakers and volunteers to help communities and to run events without the associated costs and rules around visitor visas and the tier system.

There will be a number of consequences for those communities as a result of the loss of free movement. First, while many faith groups have been effective in pointing their members to the EU settlement scheme where that is relevant, uncertainty remains about the scheme, what it means for families, for continuity of residence and for faith communities who are trying to keep people in their communities.

Faith communities looking to employ or to bring in volunteers from the EEA will now have to navigate the tier system, as they would for non-EEA nationals. As we heard, that brings complexity. With the greatest of respect to the right hon. Member for Scarborough and Whitby, I do not think it is the case that all faith communities have found that an easy system to navigate or to get the relevant approvals. There are also significant additional costs for sponsorship licences and visas. Indeed, it will not be cheap, especially when we include the additional NHS surcharge. A religious worker will be able to stay for up to two years. The cost for a one-year visa before administration costs is around £244, plus the NHS surcharge of £624, added to that the sponsorship licence fee and associated costs. On top of that, the community will have to fund any dependant costs and may also be providing the cost of flights, accommodation and training for the religious workers, and sometimes a small stipend. For smaller faith communities, that starts to become a very significant expense.

Many faith communities that rely on overseas workers tend to be found in the poorer parts of the UK. Poorer communities and poorer congregations are part of a poorer overall landscape and so the faith organisation itself will be less well resourced. It cannot draw on a wealthy congregation. That has a particular impact on smaller denominations and diaspora Churches, which will find that the loss of free movement will mean that poorer communities, who could benefit most from additional pastoral support, will feel the impact the harshest.

Proof of savings is difficult for some orders, which have vows of poverty, making it difficult for individuals to prove they can sustain themselves even if the order will cover all their living arrangements. If a person is needed quickly to cover a gap—the hon. Members for Argyle and Bute and for Cumbernauld, Kilsyth and Kirkintilloch East talked about the potential absence of a priest for a range of personal reasons—the procedure will now mean that there will be delay in bringing in that cover. I am not talking here about roles that fall short of being a full minister of religion, but there are roles that will still involve some level of religious duty. For example, there continues to be uncertainty about those coming in to work with children, and about pastoral work and preaching, and an understanding of the definitions of what those roles encompass, which is a particular issue with some particular faiths of particular traditions.

There is also a concern, as I have said, among faith communities that bring in musicians who may be self-employed and who may work in multiple settings. As the hon. Member for Cumbernauld, Kilsyth and Kirkintilloch East pointed out, seminaries that conduct formation in English are not necessarily regarded as meeting the English language requirement.

I hope the whole Committee will agree about the benefits of facilitating religious workers to come in to support our faith communities. In that spirit, I will ask the Minister a number of questions. What assessment have the Government made of the level of upscaling needed in the Home Office to process additional sponsorship licences for the purposes of ministers of religion or religious workers, or charity workers and faith communities, due to the removal of free movement?

Echoing the hon. Member for Argyll and Bute, what conversations are the Home Office having with faith groups regarding preparation for the immigration system that will affect them post-December? What help will be provided with regard to navigating sponsorship licences and understanding the costs that faith communities will have to meet?

At times, non-EEA nationals who have wanted to come to the UK for a short-term conference or to speak at an event have been denied visas; I have seen that in my own constituency. What assurance can the Minister give to faith communities that EEA nationals entering the UK for a conference or event for short-term study will not be restricted from doing so, and that appropriate decision-making will take place?

Will the Minister commit to reviewing the definitions of “minister of religion” and “religious worker”, and actively consult a wide variety of denominations and faith communities? What will the Home Office do to improve faith literacy among decision makers? I have to say that the asylum system has not given me much confidence that religious literacy in decision-making is where it needs to be.

What assessment have the Government made of the impact on creatives, such as musicians used by faith communities? Will they still be able to come to the UK? Will those in a different visa route be able to transfer if they take on a role in a faith community? For example, could someone who has arrived in the UK as a student transfer routes if they become a religious worker? Will it be possible for individuals to come to the UK as volunteers in faith communities and, if so, what restrictions will be applied to their activities? What discussions have the Government had with faith communities about their responsibility to carry out right-to-work checks?

This is an important issue for an important element of all our communities. I do not think the Government intend the impact of the removal of free movement to harm the operation of our faith communities, but the changes will cause real difficulties across a range of faiths, and particularly in those communities that most need the support that visiting religious workers can provide. I hope the Minister will be able to reassure the Committee.

[Kevin Foster]

I genuinely thank the hon. Member for Cumbernauld, Kilsyth and Kirkintilloch East for tabling this amendment. He always speaks with real passion, even when we disagree, as we did in the last debate, and his comments on this amendment have been no exception. We can perhaps be slightly more consensual now, even if the Government do not agree with the amendment.

I will deal briefly with a couple of points that have just been raised. First, in relation to decisions that would be taken on visitor visas for EEA nationals visiting faith groups, we have already made it very clear that EEA nationals will be non-visa nationals. Therefore, those looking to make visits to the United Kingdom would not be required to apply for a visa. They would be able to come through the e-gates and their visiting experience would be very similar, for example, to that of a New Zealander, a Canadian or a Japanese citizen at the moment, who can come through the e-gates and be granted visit leave. In a moment, I will come on to speak in a little more detail about the range of activities that a visitor can perform.

As a constituency MP, I have similarly sometimes been involved in decisions about faith communities, particularly a couple of years ago, when there needed to be some representations about how the income of Paignton parish church was considered, and whether a medieval church was an established organisation. I was only too happy to vouch that a church built in the 13th century is an established organisation, and that it was not set up for an immigration purpose, for pretty obvious reasons. I am genuinely always happy to hear representations from particular communities about that, as I did in that instance as a constituency MP.

We published the impact assessment for the Bill. I am clear that a lot of the Churches’ right-to-work checks will be the same as now anyway, because they have to do that for EEA citizens and UK nationals. When there is a right-to-work check, every one of us should be asked to present evidence that shows our right to work, as with right-to-rent checks; I recently had to show my passport to comply with those requirements, and rightly so. We are clear that there should be no discrimination there; those checks should be applied irrespective.

On the other points made, similarly, many faith communities, and certainly the larger faith communities present in the United Kingdom, are already sponsors. Much of that will transfer into the new system, so in many ways the experience of non-EEA nationals—non-visa nationals, to be absolutely clear—will be transferred over with the various concessions and opportunities, such as pay, performance, engagement and other items.

On the specific point made by the hon. Member for Argyll and Bute, I do not have officials’ or my predecessors’ diaries to hand, in terms of meetings, but as I met other faith communities at the invitation of Members of Parliament, I am certainly more than happy to meet the Scottish Catholic bishops representatives and to engage and have a conversation with them. They are a key partner. I certainly recognise the valuable social role that many Catholic churches play in communities across the United Kingdom. I am always happy to have a conversation about some of the definitions, particularly around visitor, tier 5 and tier 2. Some things, as I will come on to in a minute, will actually be covered by our visitor provisions, as well as under tier 5. Again, I am happy to have a conversation with them on those points.

I am genuinely grateful to the SNP for initiating this debate, because it gives me the opportunity to put on the record how the Government value the role faith communities play in this country, and more importantly, the contribution that many people who have migrated here have made and are making to the functioning and wellbeing of our faith communities. Faith communities enhance our national life, and they are stronger because people from around the world come and contribute to every aspect of their work, not least in bringing their skills to leadership in communities across the UK, hence why, in our future points-based immigration system, there will continue to be routes for those connected with faith and religion to come to the UK. Within the current immigration system, there are two routes specially designed for them, and this will continue in the future, to assist with consistency.

As referred to already, the tier 2 route for ministers of religion—effectively a skilled worker route—is for religious leaders such as priests, imams and rabbis, as well as missionaries and members of religious orders, taking employment or a role in a faith-based community. They can come for up to three years initially, which they can extend to six years, and they may qualify for settlement—indefinite leave to remain—after five years. Again, those who receive indefinite leave to remain are then exempted from the immigration health surcharge and will also have a permanent unlimited status within the United Kingdom.

Additionally, we have the tier 5 religious workers’ route. It should be clear to the Committee that this was designed with a very different purpose in mind. It permits stays of up to two years and caters for those wishing to undertake supportive, largely non-pastoral roles. In common with all tier 5 categories, as it is temporary at core, there is no English language requirement.

That last point is crucial. As I indicated, we welcome faith leaders from around the world, and in many communities regular conversations and events bring faith communities together in opposition to those who wish to sow the seeds of division between them. It is therefore right that those who want to lead a faith community, which involves both preaching and helping the faith community to interact with the wider community in their leadership role, should have a proper command of English to enable this—especially the valuable inter-faith work that goes on in so many communities.

I think of what happens locally in Torbay, and of the type of exchanges facilitated in the midlands, particularly by Coventry cathedral, given its background in different faiths. Those exchanges really cannot be facilitated if there is not a good command of a working language within the local community.

--- Later in debate ---

[Mr Goodwill]

Will the Minister pay tribute to John Sentamu, the recently retired Archbishop of York, who came from Uganda during the time of Idi Amin and has made a fantastic contribution to religious and general life in our country?

[Kevin Foster]

I am only too happy to do so and to put the Government’s thanks to him on the record. He provided an inspiration and a ministry that will be remembered for a very long time, and he broke the mould of what people expect from someone in such a senior position in the Anglican communion. Such contributions are very welcome and we want them to continue. We want to see that sort of person, particularly from the worldwide Anglican communion, as well as from the See of Rome—we have seen some amazing people come and be part of that community here in the United Kingdom. It is well worth paying tribute to such an example of someone who has achieved amazing things and revealed what he saw as God’s purpose for him as Archbishop of York. I am sure that we all wish him a very long retirement—not from holy orders, of course, which are a calling for life, but from his duties as archbishop.

I have heard the concerns expressed today about those who come to the UK for a very short term to provide cover while the incumbent minister is on holiday. It is worth pointing out our visitor rules, which will extend to EEA nationals as they currently extend to non-visa nationals, as I indicated earlier. In the immigration rules, the list of permitted activities specifically states that visitors may

“preach or do pastoral work.”

That allows many faith communities to hear inspiring preachers or hear about their faith’s work in other countries, especially in support of overseas aid and development work. Visitors are permitted to lead services on an ad hoc basis, which may provide a solution for communities that wish to invite visiting clergy to cover short-term absences, although they may not be paid for it—in many religious communities, that would not necessarily be a bar to providing a period of short-term cover.

It is worth my reminding the Committee that we have confirmed that EU citizens, who are the focus of the Bill, and EEA citizens more widely can continue to come to the UK as visitors without a visa, without prior approval, and use e-gates, where available, on arrival in the United Kingdom.

I hope that the SNP will consider its position on amendment 11. I say gently that we all need to reflect on whether it is appropriate to have faith communities led by those without a command of English adequate for the task—not least at a time when we need to come together more, not be separated by barriers of language. I therefore believe that the review that the amendment would put in place is not necessary. I invite the hon. Member for Cumbernauld, Kilsyth and Kirkintilloch East to withdraw the amendment, but I am always more than happy to discuss further how we can ensure that our faith communities are supported and that there is clarity on the three routes that I have outlined for ministers and those involved in faith communities to come to the United Kingdom and play the role that many have done in an inspiring way over many years.

[Stuart C. McDonald]

I am grateful to my hon. Friend the Member for Argyll and Bute and the hon. Member for Stretford and Urmston for their detailed contributions to the debate, and to the Minister for his response. We are back in much more convivial and consensual territory, and I much prefer it; I feel much more comfortable there. I am particularly grateful for the Minister’s offer to meet the Bishops’ Conference, which I am sure will be very welcome. This debate has helped us clarify how close we are to making sure the system works for all interested parties.

I scribbled down the fact that the Minister highlighted two routes, but of course there are three. Tier 2 is much more about the longer term, and affects ministers who want to come and settle, and the tier 5 route is not for people who will lead worship. Then there is the visitor category, but, as the Minister said, it does not allow for payment to be made, and the organisations that I have spoken to say that if somebody is here for a couple of months, there are challenges if they cannot offer to pay.

We are close, but those three routes do not quite resolve the difficulties that we have highlighted. If the Minister is able to engage with the bishops’ conferences and other religious organisations, we may be able to tweak one of the three existing routes or come up with another one. It is probably better to fix the three than to come up with a fourth. I hope we will find a resolution, and I am glad that the Minister is engaging positively. For that reason, I see no reason to press for a vote, so I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

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

Kevin Foster Excerpts

Committee stage & Committee Debate: 6th sitting: House of Commons
Tuesday 16th June 2020 Public Bill Committees

[The Chair]

Just before we begin, I should say that if members of the Committee wish to take their jackets off, they have my permission to do so. The hon. Member for Cumbernauld, Kilsyth and Kirkintilloch East and the Opposition Front-Bench spokesperson have spoken. If no Back Benchers indicate that they wish to speak, I will call the Minister. I remind the Committee that with this we are also discussing the following:

New clause 10—Extension of registration for EU Settlement Scheme—

‘(1) The EU Settlement Scheme deadline shall be extended by a period of six months unless a motion not to extend the deadline is debated and approved by both Houses of Parliament.

(2) Any motion not to extend, referred to in subsection (1), must be debated and approved no later than three months before the deadline.

(3) In this section, “the EU Settlement Scheme Deadline” means the deadline for applying for settled or pre-settled status under the Immigration Rules.’

This new clause would ensure the EU settlement scheme was not closed to new applications until Parliament has approved its closure.

New clause 11—Application after the EU Settlement Scheme deadline—

‘(1) An application to the EU Settlement Scheme after the EU settlement scheme deadline must still be decided in accordance with appendix EU of the Immigration Rules, unless reasons of public policy, public security, or public health apply in accordance with Regulation 27 of the Immigration (European Economic Area) Regulations 2016 (as they have effect at the date of application or as they had effect immediately before they were revoked).

(2) In this section—

“an application to the EU Settlement Scheme” means an application for pre-settled or settled status under appendix EU of the Immigration Rules;

“the EU Settlement Scheme Deadline” means the deadline for applying for settled or pre-settled status under appendix EU of the Immigration Rules.’

This new clause would ensure that late applications to the EU settlement scheme will still be considered, unless reasons of public policy, public security or public health apply.

New clause 25—Report on status of EEA and Swiss nationals after the transition—

‘(1) This Act shall not come into effect until a Minister of the Crown has laid a report before each House of Parliament setting out the impact of the Act on EEA and Swiss nationals in the UK.

(2) A report under subsection (1) must clarify the position of EEA and Swiss nationals in the UK during the period between the end of the transition period and the deadline for applying to the EU Settlement Scheme.

(3) A report under subsection (1) must include, but not be limited to, what rights EEA and Swiss nationals resident in the UK on 31 December 2020 have to—

(a) work in the UK;

(b) use the NHS for free;

(c) enrol in education or continue studying;

(d) access public funds such as benefits and pensions; and

(e) travel in and out of the UK.’

This new clause would require Government to provide clarity on the rights of EU nationals in the EU in the grace period between the end of the transition period, and the closure of the EU Settlement Scheme.

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

It is a pleasure to serve under your chairmanship this afternoon, Mr Stringer. These new clauses give us an important opportunity to consider the position of EEA citizens—those who are already here and are covered by the EU settlement scheme, and those who will come to the UK under our future points-based immigration system.

Before the break, I was asked a couple of questions. I can assure my right hon. Friend the Member for Scarborough and Whitby that we are looking at a range of communications materials, and have already done so, in a number of common European languages. We have engaged with diaspora media, and are looking particularly at how we can work with them over the coming year, as we approach the deadline next year, to ensure that as many people as possible hear the message—not just those who need to apply, but their friends and families, so that people feel familiar with the system and realise that it is actually a relatively simple process. The vast majority of people do it via an app on their phone.

I was grateful for the question from the hon. Member for Halifax. She asked what the position would be if someone applied on 20 June 2021 and their application was still outstanding on 1 July 2021. That is a perfectly reasonable issue to raise. As set out in the withdrawal agreement, the rights of someone who has made a valid in-time application to the EU settlement scheme will be protected while that application is pending. The regulations under the European Union (Withdrawal Agreement) Act 2020 will save relevant rights in relation to residency and access to benefits and services for those who make an application before 30 June 2021 until it is finally determined.

The Home Office will clearly not take immigration enforcement action against an individual whose application is pending. That reflects some of the other principles in the migration system. Committee members may be familiar with 3C leave—the concept that if someone has extant leave and applies, their leave is extended until their application is determined.

I assure Members that the statutory instrument making the regulations will be subject to debate and approval by Parliament, and will need to come into force at the end of the transition period. The Government are currently developing those regulations, which will be debated and made in good time prior to their entry into force at the end of the transition period.

On the linked question of what happens in relation to status checks and other things, let me be clear that an individual undergoing an eligibility check while their EUSS application is pending will have the same entitlement to accommodation, work, benefits or services that they had before the grace period ended. The Home Office will confirm whether an application is pending when an eligibility check is carried out—for example, if someone has to prove their status to their employer. Given that it is a digital-only system, it will be very similar to the process that people would use if they had been given pre-settled or settled status. I hope that is of use. Given the nature of the issue, I will set that out in writing for members of the Committee. They may wish to refer to it later.

New clause 9, moved on behalf of our friends in Plaid Cymru by the hon. Member for Cumbernauld, Kilsyth and Kirkintilloch East, seeks to delay the ending of free movement and the introduction of the new points-based immigration system for as long as possible. That is no surprise, given the views of the hon. Gentleman and Plaid Cymru.

My response on behalf of the Government is simple: we must accept the wishes of the people of our United Kingdom. Free movement is ending now that we have left the European Union. It is just six months since the general election, during which my party said that we would introduce a points-based immigration system that will enable us to bring in the best talent from around the world—based on the skills that a person has, not where their passport is from. The Government will therefore reject any attempt to perpetuate free movement or delay the implementation of the new points-based immigration system. The Government have a mandate, and we will fulfil our pledges to the people. We will introduce our new firmer and fairer points-based immigration system from 1 January 2021, when the transition period ends.

Having said that, I appreciate the importance of proper data and information. It is precisely for that reason that the Government have published a detailed impact assessment to accompany the Bill. It was published on 18 May and can be found on gov.uk and the Parliament website. Copies were also placed in the Library, and I know it has been referred to at times during the debates we have had so far.

The impact assessment is slightly unusual because it is not confined simply to the scope of the Bill, which, as Sir Edward and you, Mr Stringer, have reminded us on a number of occasions, is relatively narrow. Instead, it seeks to map out the consequences that will flow from the introduction of the points-based immigration system that was set out in the policy statement, which my right hon. Friend the Home Secretary published on 19 February.

The impact assessment sets out the likely implications for both EEA and non-EEA citizens of the changes that we will make, and it deals with many of the issues raised by the new clause. In particular, it makes it clear that we will develop plans to evaluate policies under the future skills-based immigration system. I remind the Committee that we have expanded the role of the independent Migration Advisory Committee. Not only will the MAC respond to specific commissions from the Government; it will also be able to consider any aspect of immigration policy that it chooses.

We have also asked the MAC to produce an annual report, which will give it the opportunity to comment on what it believes is working well and anything it thinks is working less well in our system. Although it is for the MAC—as I have said, it is independent of Government—to decide how to exercise its new responsibilities, I would be surprised if it did not want to comment on the operation of the new points-based system once it is fully up and running, so that there is further assurance for the public and for the movers of the new clause. For those reasons, the Government cannot accept the new clause.

I will now speak to new clauses 10, 11 and 25, which concern the EU settlement scheme and the grace period that will run from the end of the transition period to 30 June 2021. New clause 10 is designed to extend the deadline for applications to the EUSS by six months, which would happen unless and until Parliament debated and approved a motion not to extend the deadline.

I share the aim of the hon. Member for Cumbernauld, Kilsyth and Kirkintilloch East to ensure that eligible EEA citizens are able to obtain the UK immigration status they need to continue to live and work here. As we constantly say, they are our neighbours and friends—we want them to stay. However, I do not think that is best achieved by the new clause, which has the effect of shifting the deadline for applications to the scheme potentially indefinitely. That would cause confusion. Instead, a clear deadline of 30 June 2021 will encourage applications to the scheme and ensure the greatest number of resident EEA citizens secure their status in a timely manner.

Furthermore, new clause 10 is ambiguous. It is not clear whether it is intended to be a one-off extension of six months or a rolling extension of a six-month period until such a time as Parliament votes to close the scheme with just three months’ notice. Having a clear and well-publicised deadline by which eligible citizens need to apply ensures that the maximum number do so rather than putting it off due to the impact of new clause 10, which could mean that a deadline is set with three months’ notice. The new clause could also mean that applicants face difficulties and delays in demonstrating their rights and entitlements in the future, as they would not be able to distinguish themselves from EEA citizens who arrived after the end of the transition period.

The Government have made it clear that we will continue to support eligible citizens in applying to the EU settlement scheme. In addition, as we have shown with all aspects of the scheme, we will take a flexible and pragmatic approach and allow people with reasonable grounds for missing the deadline a further opportunity to apply. We will set out further guidance on this issue in due course, but with over a year to go until the deadline, our focus is on getting as many applications before it as possible.

On new clause 25, we will bring forward a statutory instrument under powers in the European Union (Withdrawal Agreement) Act 2020 to set the deadline and save the residency rights of people who are eligible to apply to the scheme and who do so before the deadline. I am not sure whether this is the intention of the hon. Member for Cumbernauld, Kilsyth and Kirkintilloch East, but the effect of new clause 10 would be to breach our obligations under the withdrawal agreements. The deadline of 30 June 2023 applies only to EEA citizens and their family members who reside in the UK by the end of the transition period. Their close family members outside the UK at the end of the transition period—where the relationship existed before then and continues to exist when they seek to come here—and their future children have a lifelong right of family reunion with the resident EEA citizen. A universal deadline makes no provision for this group, whether it is 31 December 2021 or any other date, and it would be inconsistent with the provision to enable them to apply within three months of their arrival, as set out in article 18(1)(b) of the withdrawal agreement.

New clause 11 is intended to require the consideration of all applications to the EU settlement scheme made after the application deadline, unless reasons of public policy, public security or public health apply. As the hon. Gentleman will be aware, the withdrawal agreement requires late applications to be considered

“if there are reasonable grounds for the failure to respect the deadline.”

As I said earlier, the Government will adopt a flexible and pragmatic approach to the consideration of late applications. Where an eligible EEA citizen or their family member has reasonable grounds for missing the application deadline of 30 June 2021, they will be given a further opportunity to apply. This approach gives people a clear deadline and incentive to apply while also protecting those who are unable to do so through no fault of their own.

Our collective focus must be on encouraging applications to the EU settlement scheme before the deadline.

[Stuart C. McDonald (Cumbernauld, Kilsyth and Kirkintilloch East) (SNP)]

In terms of intention, I think everybody in this room is at one. The Minister provides assurance in relation to people who miss the deadline through no fault of their own. Would that include people who, because of their complicated immigration nationality situations, had not appreciated that they needed to apply for the scheme?

[Kevin Foster]

I think it is safe to say that the list will not be an exhaustive one. There will need to be an element of discretion as we cannot list every single possible situation that might reasonably cause someone to be late in their application, but if, for example, they have had a difficult court case or something that meant they had not been able to apply, and a status had then been granted, it is likely that that would be seen as a reasonable excuse. It will be set out in guidance.

Our intention is to set out a list of situations that are not exhaustive but indicative. We can all think of circumstances that would be perfectly reasonable. For example, in the case of a child in the care of a local authority, we would expect the local authority to have made efforts to get them registered. We could make a very long list and still not get to an exhaustive level. The list will demonstrate grounds, but it will not be an exhaustive list of the only situations that we would accept as reasonable grounds for failing to apply on time.

As I say, we will take a flexible and pragmatic approach with those who miss the deadline. We have more than a year to go before the deadline. If people feel that they might need to make an application, the best thing to do is to find the information and make the application. That is our absolute focus at the moment. We are working closely with support groups to ensure that we can reach out to vulnerable communities who might need assistance. We have kept a range of support services running throughout the recent period and have now reinstated all routes for application, including paper applications that are made available to those with the most complex needs.

We want to encourage applications before the deadline. That will ensure that EEA citizens can continue to live their lives here, as they do now, without interruption. To make a commitment now that we would also consider all late applications would undermine that effort.

Where there are reasonable grounds for submitting a late application, we will consider the application in exactly the same way as we do now, in line with the immigration rules for the EU settlement scheme. That includes the consideration of conduct committed before the end of the transition period on the grounds of public policy, public security and public health, and of conduct committed thereafter under the UK conduct and criminality thresholds. As I have mentioned, we will publish guidance for caseworkers on what constitutes reasonable grounds, to ensure consistency of approach. Again, however, with more than a year until the deadline, it is premature to do so now, for the reasons I have given.

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[Mr Goodwill]

Thank you, Mr Stringer. The point that I was working up to was that by having an exemption only for EU citizens, we are discriminating against a large number of people who would wish to come and work in the UK from around the world. The ethnic mix of those particular groups would indicate that allowing the new clause would give a land bloc where the majority of people are white an unfair advantage over the rest of the world. I understand the aspiration to abolish the charge completely globally, but if we were to agree the new clause, we would end up in a situation where black and minority ethnic people from around the world would be at a great disadvantage to predominantly white people coming in from the European Union, EEA countries and Switzerland.

[Kevin Foster]

I thank the hon. Member for Cumbernauld, Kilsyth and Kirkintilloch East for tabling new clause 12 and the hon. Member for Halifax for tabling new clause 42, both of which relate to the immigration health charge, and for the opportunity they provide to debate this issue.

The background, for members of the Committee, is that the immigration health charge ensures that temporary migrants who come to the UK for more than six months make a fair contribution to the NHS services available to them during their stay. Income from the charge contributes to the long-term sustainability of our fantastic health service across our Union, although certain groups are exempt from the requirement to pay the charge and others benefit from a discounted rate.

The health charge is designed to help support the NHS services that we rely on throughout our lives. It raised approximately £900 million in much-needed income for the NHS from its introduction in 2015 to the end of the 2018-19 financial year—income that, I will be clear, has been shared between the four devolved health administrations in line with the Barnett formula, helping to fund the NHS across our United Kingdom.

Turning to the future, all migrants will be treated the same under our new points-based immigration system. The expectation is therefore that all nationals applying, including EEA citizens, will pay the charge if staying for temporary periods of longer than six months, unless an exemption applies. Of course, EEA citizens who are resident in the UK before the end of the transition period on 31 December 2020 are not subject to the immigration health charge. That was agreed as part of negotiations on the withdrawal agreement with the EU, which also protects the rights of UK nationals in the EU.

To touch on the point made by my right hon. Friend the Member for Scarborough and Whitby, now we have left the European Union, it would be rather hard to defend having an exemption for EEA nationals alone, given that we no longer have freedom of movement in place and will no longer members of the EU, and then applying this to the rest of the world. I respect the SNP’s point—they have made it regularly and I am sure they will make it again at regular intervals—and their principled view on this issue overall, but it would not make sense to have an exemption for one group applying under the points-based system rather than another, based on nationality alone. I appreciate the point and it will be interesting to hear what conclusions the hon. Member for Halifax comes to as part of her review.

The Government believe that new clause 42 is unnecessary. As has already been said, hon. Members will be aware that my right hon. Friend the Prime Minister has asked the Home Office and the Department of Health and Social Care to exempt NHS and social care staff from the charge. The exemption will apply to the relevant applications regardless of nationality—as I say, we are moving to a global points-based system—once that system is in place.

Officials are currently working through the detail of the exemptions; sadly, I will have to disappoint the hon. Member for Halifax and say that I cannot go into the full details today of where it will be, but hon. Members will appreciate that that is because we want to get this right and are working with our colleagues in the DHSC to do that.

There was a point made about renewals for doctors currently in the NHS. It is worth pointing out that those who are currently working in the NHS as doctors, nurses or in a number of health professions, are subject to automatic extension for a year. If they get an automatic extension for a year, that also waives the immigration health charge. It is not just the visa fee that goes, but the immigration health charge. Someone currently working for the NHS whose visa is due for renewal is getting a free year, and certainly by this time next year we will have the detailed guidance out there for them. I hope that provides some reassurance about the position as we stand here today.

I recognise the concerns about the financial impact of the health charge on people migrating here, including those who contribute to the NHS through tax and national insurance payments. The health charge provides comprehensive access to NHS services regardless of the amount of care needed during a person’s time in the UK, and includes treatment for pre-existing conditions.

The IHS not only represents excellent value when compared with the alternatives, but ensures that individuals do not need to worry about insurance or how they will pay for unexpected treatment while they are here. It compares favourably with the type of health insurance or other health care costs that those migrating to other countries might well face in order to get the same level of services that our NHS provides to all at point of need, free of charge, here.

As I said earlier, the Government is exempting NHS and care workers from the charge in recognition of the enormous contribution they make to the NHS directly. It is, however, only fair to expect people arriving in the UK to work in non-health-related roles to contribute to the range of NHS services available to them, given that they will not have the history of making contributions towards it that most long-term UK residents will have. It is also worth remembering that those who receive indefinite leave to remain—that is, settlement—are exempted from the IHS, in recognition of the long-term commitment to our United Kingdom this represents.

Finally, the Government are in the process of negotiating reciprocal healthcare arrangements with the EU, and it is important that we do not undermine the integrity of those negotiations through this Bill. I therefore invite the Members from the Scottish National party to withdraw the motion.

[Stuart C. McDonald]

I am grateful to the Minister for his response. We are essentially debating a fundamental point of principle here: we have different views about the appropriateness of this charge.

To respond to the right hon. Member for Scarborough and Whitby’s intervention, I am of course constricted in what I can table as an amendment or new clause. I would scrap the charge for everybody, not just EEA nationals, but the scope of the Bill prohibits me from tabling a broader amendment. I think that if an assessment of the NHS surcharge’s impact on black and minority ethnic people were carried out, it would make for interesting reading, but that is a debate for another day. I stand by my party’s position that this is a double tax that is completely unjustifiable, and will therefore push new clause 12 to a Division.

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

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[Holly Lynch]

We support new clauses 13, 36 and 37, which were tabled by the SNP and address immigration and citizenship fee charges that fall within the scope of the Bill. We believe that visa charges should not exceed the cost price, for all the reasons that have already been set out.

Subsection (1) of new clause 13 would prohibit EEA and Swiss citizens from being charged a fee for registering as a British citizen that is greater than the cost of the registration process. As we have already heard, there is enormous cross-party support for this approach.

The Home Office makes a profit of up to 800% on immigration applications from families. The fees are now £1,012 for children and £1,206 for adults, which are really quite significant sums. We have all had constituents come to us because such fees are causing a huge amount of anxiety and stress after a change in circumstances. We have all had casework in which applications have been turned down on technicalities, which we have been able to challenge through our parliamentary offices. Families are often forced to make further appeals and further applications, and to pay again.

EEA and Swiss nationals will soon join the rest of the world in having to pay visa fees or fees for starting the journey towards British citizenship. The British Nationality Act 1981 contains provisions to ensure that no child with entitlement to register for British citizenship should have to pay a fee. Subsections (2), (3) and (4) of new clause 13 are designed to safeguard that Act, in spite of the Bill. I particularly welcome subsection (2), which would provide a further safeguard for children who receive assistance from their local authorities, adding to our proposals in new clause 58. We will come on to clause 58, but those provisions seek to provide automatic settled status for all EEA and Swiss children in care, and for those entitled to care-leaving support.

With that in mind, we welcome the independent chief inspector’s report, “An inspection of the policies and practices of the Home Office’s Borders, Immigration and Citizenship Systems relating to charging and fees”, which was presented to the Home Secretary last September. It set out concerns about the legislative procedure for citizenship and immigration fees, and it recommended that the Home Office undertake to provide considerably more clarity on fee levels, stating that the Government should:

“Either make public any Policy Equality Statements produced for ministers or publish separate statements that show clearly what has been considered when proposing fees levels/increases in terms of equality and diversity, in particular the social and welfare impacts on children, families and vulnerable persons.”

New clauses 37 and 38 would require Parliament’s consent for changes to be made to citizenship fees and immigration fees respectively. As we have discussed, the Government are attempting to grant themselves sweeping Henry VIII powers throughout the Bill; we have rehearsed that debate several times. We believe it is vital that parliamentary oversight is at least afforded to these charges, which will dictate the lives and prosperity of EEA and Swiss migrants in the UK for years to come. Ideally, that should be done through parliamentary legislation rather than through the current framework, which relies on statutory instruments.

[Kevin Foster]

I am grateful to the hon. Members for Cumbernauld, Kilsyth and Kirkintilloch East and for Argyll and Bute for tabling new clauses 13, 36 and 37, which provide the Committee with the opportunity to consider fees charged in respect of applications made by those who will lose the right of free movement under the Bill for citizenship, leave to enter or remain in the United Kingdom, the immigration health surcharge, the immigration skills charge and sponsorship licences. I pay tribute to the hon. Gentlemen’s diligence in going through all the points that they wished to highlight.

It may be helpful to provide some background information for the Committee. Application fees for border, immigration and citizenship products and services have been charged for a number of years, and they play a vital role in our country’s ability to run a sustainable system. To put them into context, the current charging framework across the operation delivered £1.98 billion of income in the financial year 2018-19. That income helped to deliver the funding required to run the borders, immigration and citizenship system, and it substantially reduces the burden on UK taxpayers, as I am sure members of the public would rightly expect us to do.

The immigration health charge ensures that temporary migrants who come to the UK for more than six months make a fair contribution towards paying for the NHS services that are available to them during their stay. As was touched on earlier, income from the charge directly contributes to the long-term sustainability of our fantastic health service across our United Kingdom. Certain groups are already exempt from the requirement to pay the charge, and others benefit from a discounted rate.

The immigration skills charge is designed to incentivise employers to invest in training and upskilling the resident workforce to move away from reliance on the UK’s immigration system as an alternative to investment in staff retention, productivity, technology and automation. Income raised from the charge will be used to address skills gaps in the UK workforce, and that will be of benefit to businesses in the long term. Any fees to be charged are already approved by both Houses of Parliament.

New clause 13(1) is designed to limit the Secretary of State’s power to charge a fee for applying for British citizenship to the cost of processing. That would apply to anybody who has enjoyed free movement rights at any point. Imposing such a provision would cut across the existing statutory framework for fees and would risk undermining the funding and coherence of the whole current and future system.

Additionally, making fee provisions that are specific to certain nationalities as part of the Bill would be unfair to all users of the border, immigration and citizenship system, and it could lead the Home Office to discriminating on the basis of a person’s nationality. That clearly goes against our policy, although I accept that part of the rationale for that was to get the new clause into the scope of the Bill.

[Stuart C. McDonald]

Yes, that is absolutely the case. This does not apply even to every EU national exercising free movement; it applies to EU nationals who have the right to British citizenship through registration. It is a very specific subset, to which hugely different considerations apply; they are not in the same position as folk who have chosen to turn up and apply through naturalisation. They have a right, under an Act of Parliament, to British citizenship.

[Kevin Foster]

I re-emphasise that having this type of provision in the Bill would cut across and create a new precedent. We would be talking about someone whose right of free movement was removed by the Bill. That would create incoherence, particularly once we have left the European Union, with provisions based on rights from being in the EU—a situation that does not now exist. We have put in protections that are appropriate and proportionate.

New clause 13(2) is designed to prevent the Secretary of State from charging the child of a person who has exercised free moment rights a fee to register as a British citizen, if the child is in receipt of local authority assistance. “Local authority assistance” is too broad a term and could include those who access a range of financial and practical support measures offered by local authorities. For example, a child may receive assistance from a local authority if they attend day-care facilities while they are not yet at school. That is quite different from a child who is looked after and in the care of the local authority by way of a care order made by a court, or a voluntary agreement with the parent to accommodate the child.

It is important to remember that any child, irrespective of nationality, who is looked after by their local authority can apply for limited and indefinite leave to remain without being required to pay application fees, ensuring that no child in local authority care is unable to access leave to remain. Although many will choose to pursue British citizenship, having citizenship, as opposed to an award of indefinite leave to remain, is not essential for any individual to work, live, study or access services in the UK .

[Stuart C. McDonald]

I urge the Minister not to pursue that line, which was pursued by a previous Prime Minister and Home Secretary. No one would say to anyone in this room, “You don’t really need British citizenship. Why not just settle for indefinite leave to remain?” The Minister is missing the point—I am talking about people who have as much right to British citizenship as anyone in this room. It is not a substitute to say, “Just become a migrant in your own home country and apply for immigration status here.”

--- Later in debate ---

[Kevin Foster]

I was talking about the logic of our fee system and the fact that we have exemptions to do with the status of people who need to access public services. Traditionally, our position on citizenship is that it is not something that people need in order to access services. I re-emphasise the breadth of the provisions in the new clause—I notice that that was not disputed.

New clause 13(3) would remove fees for the children of people who have exercised free movement rights to register as a British citizen where the child or the child’s parent, guardian or carer is unable to afford any associated fees. It raises similar points to subsection (1) in respect of fairness, discrimination and suitable legislative structures already being in place. Subsection (4) would require the Secretary of State to take steps to make persons who have exercised free movement rights aware of their rights to obtain British citizenship under the British Nationality Act 1981.

When explaining the rights that are afforded by settled status obtained via the EU settlement scheme, we make it clear that they may include a right to apply for British citizenship, provided that eligibility requirements are met. Of course, there is no charge for applying to the EU settlement scheme. Information about becoming a British citizen is also available in published guidance on gov.uk, and we are committed to ensuring that information of this nature is fully accessible for all. I hope that reassures the Committee that we are taking steps to make people aware of their rights, and that a statutory obligation to that effect is therefore unnecessary.

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[Holly Lynch]

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.

[Kevin Foster]

I thank hon. Members for their contributions. The legal aid scheme is designed to target legal aid funding at those who need it most. Legal aid is available for the most serious cases to ensure and maintain access to justice while delivering value for money for taxpayers. The Bill itself does not provide a right to enter or remain for EEA citizens, and the new clause would bring issues relating to the end of free movement, such as applications under the EU settlement scheme, into scope for legal aid.

The EU settlement scheme has deliberately been designed to be streamlined and user-friendly. The majority of applicants will be able to apply without the need for advice from a lawyer. However, we recognise that there will be some vulnerable individuals who may need support in using the scheme, and we have put in place safeguards to ensure that the scheme is accessible to all.

The Government have always been clear that publicly funded immigration legal advice is available to some particularly vulnerable individuals. Individuals who are claiming asylum, those identified as potential victims of modern slavery or human trafficking, separated migrant children and victims of domestic violence are eligible for legal aid funding for immigration legal advice, subject to statutory means and merits tests.

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[Holly Lynch]

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?

[Kevin Foster]

To respond to my shadow, the hon. Member for Halifax, as we touched on at some length earlier, there would be grounds for reasonable excuse as to why someone had filed a late application. We will set out the criteria; it will not be an exhaustive list, because it would be impossible to come up with an exhaustive list of things that would be reasonable in many individual circumstances.

It is worth noting that the scheme has now been open for more than a year. The first group who started to apply to it were NHS workers, and there has been some very welcome work by NHS trusts and employers to make sure their employees are aware of it. For those very skilled people working in our NHS, it is worth remembering that what we are talking about is using an app on their phone with chip checker technology—it is a relatively simple and appropriate process. Certainly, any enforcement will be proportionate throughout the system, as people would expect.

New clause 15 intends to exclude all EEA citizens from the criminal offence of working illegally created by the Immigration Act 2016, as stated by the hon. Member for Cumbernauld, Kilsyth and Kirkintilloch East. I am grateful to him for the opportunity to debate this important topic. Again, as he would expect me to say, the amendment is at odds with our commitment to introduce a single global migration system. I accept that he wants to pick the issue up in the scope of the Bill, but that is a core reason why the Government believe it is right for us to have a single system.

Under the new system, everyone will be required to obtain the correct immigration status, and we will clearly distinguish between those who are here lawfully and those who are not, regardless of where their passport is from. Working illegally is a key driver of illegal migration and we are determined to tackle it. Illegal working results in businesses that do not play by the rules undercutting legitimate businesses that do. It encourages people to break our immigration laws, leaving people vulnerable to exploitation, and means that they are paid under the legal minimum wage.

The offence of illegal working applies if an individual works in the UK when they are or have reasonable cause to believe that they are disqualified from working because of their immigration status. The new rules will be clear and will set out what is expected of people as well as their entitlement. Any person who wants to work in the UK will need to have the correct status before starting a job.

EEA citizens with EU settlement scheme status will continue to enjoy the right to work and access the same services as they do now. As I have already said, we will continue to encourage applications to the EU settlement scheme before the deadline, and will implement the new points-based system that treats EEA and non-EEA citizens equally.

The new clause would discriminate in favour of EEA citizens, which is not justifiable after we have left the European Union. I appreciate the hon. Gentleman’s principled position in the provisions. I have touched on the provisions that are implemented proportionately, where they are applied. There is enforcement, particularly against employers who seek to exploit people. I hope that, in the light of those points, he will withdraw the clause, because it is not one that the Government can support.

[Stuart C. McDonald]

I am grateful to hon. Members for discussing the subject, but I do not think we really got into the meat of it. I do not think that only EEA nationals should be exempt from the criminal offence of illegal working; there are good grounds for getting rid of it altogether. I wanted to find out whether the Government have done any analysis about how it has helped in any way and, in contrast, about the unintended consequences, such as making exploitation more serious and more significant. We will perhaps return to some of those issues when we debate other aspects of the hostile environment later. I might write to the Minister to try to press again for answers to some of the questions that I raised at the outset. In the meantime, I beg to ask leave to withdraw the motion.

Clause, by leave, withdrawn.

New Clause 16

Immigration Rules Advisory Committee for Immigration Rules for EEA and Swiss nationals

‘(1) The Secretary of State must establish an Immigration Rules Advisory Committee to consider relevant Immigration Rules.

(2) In this section “relevant Immigration Rules” mean Immigration Rules that apply to persons whose right of free movement is ended by section 1 and schedule 1 of this Act.

(3) The function of the Immigration Rules Advisory Committee shall be to give advice and assistance to the Secretary of State in connection with the discharge of his functions under this Act and in particular in relation to the making of relevant Immigration Rules.

(4) The constitution of the Immigration Rules Advisory Committee shall be set out in regulations.

(5) The Secretary of State shall furnish the Immigration Rules Advisory Committee with such information as the Committee may reasonably require for the proper discharge of its functions.

(6) No relevant Immigration Rules may be made by the Secretary of State, until the Immigration Rules Advisory Committee is established.’—(Stuart C. McDonald.)

This new clause would require an advisory committee to be established in order to provide advice on immigration rules for EEA and Swiss nationals.

Brought up, and read the First time.

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I could go on, but I think hon. Members get the point. Indeed, when I visited Dublin I was struck by the fact that there was no congregation of immigration powers in just one Department; it was the Business Department, for example, that designed work visa policy. That seems a sensible idea to me, and one that is at least worth exploring.

[Kevin Foster]

I am once again grateful to the hon. Member for Cumbernauld, Kilsyth and Kirkintilloch East, and to others, for providing a further opportunity to discuss parliamentary scrutiny of the immigration rules and the powers to make them. Parliamentary scrutiny is an important issue, and one that I am aware members of the Committee are rightly very interested in. I will therefore take each new clause in turn.

I will first address new clause 31—I think I can respond pretty swiftly to this one. The UK Government work on the basis of collective responsibility. All policies are collectively agreed and reflect the views of all parts of Government. I may be the Minister for Future Borders and Immigration, and I have the good fortune to speak for the Government on matters connected with our new immigration arrangements, but I can assure the Committee that the policies I put forward are the policies of the entire Government, which were endorsed in December’s general election by the British people. No other Minister standing in this spot would advocate any different policies.

The notion of collective agreement and collective responsibility has long been a feature of the way this country is governed, which is why legislation confers powers on “the Secretary of State” generically. Incidentally, this approach also has the benefit of future-proofing our legislation in the event of machinery of Government changes.

I have the utmost respect for my right hon. Friends the Secretaries of State for Education and for Business, Energy and Industrial Strategy; both are doing excellent work in their posts and we are lucky to have them. But let me be very clear: were they to make immigration rules, they would be no different from those that my right hon. Friend the Home Secretary will be making, because this is a single united Government with a clear policy on these matters.

Our policies were put before and endorsed by the electorate, more detail was set out in a policy statement endorsed by the entire Government, and they represent the settled view of the Government as a whole. New clause 31 would therefore add nothing to the Bill. Having heard the explanation of how the Government system works, I hope the hon. Member for Cumbernauld, Kilsyth and Kirkintilloch East will withdraw it.

New clause 16 would require the Home Secretary to establish an immigration rules advisory committee to provide advice and assistance on any immigration rules relating to EEA citizens once free movement to the UK has ended as a result of this Bill. I have said previously that our new points-based system will be set out in the immigration rules. Those rules will be subject to parliamentary scrutiny in the usual way. The new clause seeks to add an additional layer of scrutiny, and will prevent the Home Secretary from making any immigration rules before an advisory committee is established by regulation. There is no justification for establishing a statutory advisory body to advise specifically on the rights of EEA citizens, who will be treated as other EEA citizens under the future immigration system.

[Mr Goodwill]

Does my hon. Friend agree that the Migration Advisory Committee carries out much of the work already? New clause 32 is specifically covered by the MAC.

[Kevin Foster]

I thank my right hon. Friend for his intervention. I will come on to new clause 32, which is about an annual report on the labour market, in a moment. We are freeing up the MAC to consider matters of interest to it and to provide recommendations on policies, although I expect it will be more nuanced when we come to reports on the labour market overall. That is more to do with the Department for Work and Pensions. We want a coherent strategy where migration is a part of that. We did not want to set it out purely in relation to EEA nationals.

[Kate Green (Stretford and Urmston) (Lab)]

The difference between the MAC, which, as the Minister rightly says, is interested in labour market trends and developments, and the Social Security Advisory Committee, which the hon. Member for Cumbernauld, Kilsyth and Kirkintilloch East set up as an analogy for the Minister to consider, is that the SSAC looks specifically at the implementation of secondary legislation and advises on new regulations that the Government might introduce. Given the extent of immigration policy introduced in immigration rules, I would suggest that the MAC is not actually set up, and is not even likely to be set up in future, to provide advice to the House on those matters.

[Kevin Foster]

The hon. Lady makes a not unreasonable point. The MAC gives advice on general policies on immigration. For example, it came up with what occupations should be on the shortage occupation list. It does not necessarily draft the legislation. However, the core of what we are driving at is there. I will continue with my speech because there have been significant changes in relation to simplification since an identical Bill was considered in the previous Parliament. Fundamentally, creating a statutory advisory body would simply delay the Government from introducing new consolidated and simplified rules by 1 January 2021, which could cause considerable confusion and ambiguity about which rules apply to EEA citizens once free movement ends.

In any event, the new clause is unnecessary. The Law Commission, in its consultation paper on simplification of the immigration rules, published in January 2019, asked whether an informal consultation or review of the drafting of immigration rules would help to reduce complexity. In its final report, published in January 2020, the Law Commission recommended that the Home Office should convene at regular intervals a committee to review the drafting of the rules in line with the principles recommended by the Law Commission. That is the more nuanced point that the hon. Member for Stretford and Urmston referred to. On 25 March the Government published our response to the Law Commission report and recommendations, and we accepted that recommendation. We included in our response the terms of reference for and membership of the simplification of the rules review committee. To be clear, this covers the whole ambit of the rules, not just those as they relate to EEA nationals.

The committee is, as recommended by the Law Commission, made up of Home Office civil servants, immigration practitioners and organisations representative of non-expert users of the rules, including those representing vulnerable applicants such as children. The review committee meets monthly to advise on the Home Office’s proposals to draft simpler rules and accompanying guidance and how they can be made more accessible online.

I hope that, as we have already established a review committee and its terms of reference and membership are transparent, that will give the hon. Member for Cumbernauld, Kilsyth and Kirkintilloch East the confidence to withdraw new clause 16.

New clause 30 seeks to introduce the super-affirmative procedure for immigration rules. Typically, that procedure is used only for deregulatory orders that amend or repeal primary legislation, such as legislative reform orders or public bodies orders, or remedial orders under the Human Rights Act. In those circumstances, it is right that the highest level of scrutiny should be applied, but it is not appropriate to apply the same procedure in respect of changes to immigration rules, which obviously are not, and cannot amend, primary legislation.

Under the current, well-established procedure, the Government are able to update the immigration rules in a responsive way, to ensure that we have an immigration system that meets the UK’s needs, commands the confidence of the public and reflects the wider economic, social and political context in the UK at any time. Requiring a minimum 60-day standstill period—that would be a minimum, because if, for example, changes were laid in late June, the period would not expire until late October—would severely hamper our ability to make timely and effective changes to the rules to respond to emerging situations.

[Mr Richard Holden (North West Durham) (Con)]

In evidence at the start of Committee proceedings, we heard from Mr McTague from the Federation of Small Businesses, who picked up this point. He said:

“I think the fact that the Home Secretary is in a position to vary it and respond to changes in market conditions is better than if…we had to go through some sort of legislative process”.––[Official Report, Immigration and Social Security Co-ordination (EU Withdrawal) Public Bill Committee, 9 June 2020; c. 14, Q28.]

That is exactly the point that we are trying to get at. Changes are much better if they are in the hands of the Home Secretary, who can then address Parliament on them, rather than having to go through statutory changes like this.

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[Kevin Foster]

I thank my hon. Friend for reminding us of the evidence that was given. The core of the matter is that our immigration rules need to remain flexible to respond to emerging situations. For example, if the conditions around visas were in primary legislation, we would have to be putting through Acts of Parliament to alter and extend visas in relation to the current covid-19 situation, which none of us would feel was a sensible way of handling that type of thing. In addition, this process has been established for a very long time. Parliament, rightly, can oversee the immigration rules, but they can be flexible and adapt. To be clear, putting forward, effectively, an immigration rules change could not, for example, alter the provisions that we have on Irish citizens in this Bill and in the primary legislation.

[Kate Green]

I just want to make sure that I have understood correctly—I may not have—what the Minister is saying and the provisions of the Bill. I understood him to say that the super-affirmative procedure is appropriate only in circumstances that include amending primary legislation, but is it not the case that the provisions of this Bill give the Government, in some circumstances, the opportunity to do that?

[Kevin Foster]

They do, subject to the affirmative procedure, but that is—as we discussed under previous clauses and particularly in the clause 4 debate—for specified purposes. The measure does not just give us an unending power.

We could not, for example, change our international obligations and some other areas via this method, the use of which relates to the narrower areas of the Bill. It is not a carte blanche to change all primary law that affects immigration law, but applies where it is consequential to the purposes of the Bill.

--- Later in debate ---

[Holly Lynch]

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

The new clause stands in my name and those of the shadow Home Secretary and my Committee colleagues. The new clause offers a sensible method to help to safeguard the rights of all EEA and Swiss nationals who are registered through the European Union settlement scheme by providing them with physical proof of that registration. We have already discussed some of these issues under new clause 25.

In the largest survey of EU citizens’ experiences of the EUSS, which was carried out by the3million, 89% expressed unhappiness about the lack of physical proof of their status. Simple physical proof would provide citizens with the type of reassurance that is offered only by something that can be held in the hand. Although in principle we largely support the aspiration to move toward a much more digital immigration system, we have already pointed out to the Committee time and again that, as the hostile environment persists, in the shameful shadow of the Windrush scandal, confidence in the system is at an all-time low.

The Home Office works through banks and landlords, and across Departments, actively to query a citizen’s immigration status. To have physical paperwork to hand, in order to put to bed any doubts about a person’s status quickly and confidently, would be a welcome addition to an e-visa.

There are also inherent IT risks when relying on purely digital proof for immigration status. The truth is that the Government cannot completely rule out the possibility of an irretrievable data loss or, even worse, the hacking of a data system. It is less than two years since the so-called WannaCry cyber-attack caused havoc for the IT systems of the NHS, locking users out of personal computers and resulting in 19,000 cancelled appointments. It transpired that the systems that the NHS used included Windows XP, which at the time was already a 17 year-old operating system and so was vulnerable to such interference. It does not bear thinking about, but in a nightmare scenario where such hacking or corruption affected the Home Office, a potential loss of data, or even the inability to access the data for a period of time, could have devastating consequences for those at the mercy of the hostile environment.

As stated by Luke Piper on behalf of the3million in last week’s evidence session, to trial a new digital-only scheme on over 3 million people is quite a gamble, and currently no other group in the UK is managed in this way. We share the concerns of the House of Lords European Union Committee, which were mentioned by Luke Piper in his evidence to this Committee. He said:

“The House of Lords European Union Committee made the point that there are real worries that those without physical proof will face similar problems to those faced by the Windrush generation; there is a risk that they will face discrimination because they do not have physical proof of their status.”––[Official Report, Immigration and Social Security Co-ordination Public Bill Committee, 9 June 2020; c. 61.]

There are day-to-day practical complications that will be inflicted upon those in the EUSS who do not have physical proof of their status. For example, the Residential Landlords Association has repeatedly called for some form of physical proof to assist its members in both adhering to the law and avoiding discriminatory practices.

The Joint Council for the Welfare of Immigrants carried out research on the right-to-rent scheme in 2017. Out of 150 emails from migrants requesting that landlords check their identity online, 85% received no response. Only 12% of inquiries received a response that might invite a follow-up, such as a phone call or a viewing. Only three responses explicitly stated that the landlord was willing to conduct an online check. A migrant with documentation received a response rate of roughly 50%. Although there are still indications that renting migrants face unacceptable barriers, that is at least a marked improvement on the previous situation.

The fear is that the lack of physical proof will also act as an impediment for EU citizens applying for jobs. Millions of people work in the gig economy, which is characterised by short-term contracts and freelance work. We have already referred to the work of the Institute for Public Policy Research, which recently used data from the labour force survey in a report that found migrants are more likely to be working in industries or sectors, such as accommodation and food services, that have around 9% of EU workers. Facing competition from British citizens, who can prove their right to work by showing a passport, should that be required, and from non-EEA citizens, who can prove their right to work by showing their physical residence card, EU citizens have to go through the complicated hassle of a nine-step online process and then ask their potential employer to go through a 10-step process. It is inevitable that many employers will not have the desire or the time to complete such an arduous process, and as a result the employment prospects of those registered in the EUSS could potentially suffer.

Those are just a few examples of how a lack of physical proof could affect those who have pre-settled or settled status through the EUSS but exclusively digital confirmation of that status. The inconveniences and delay that could result threaten to permeate through daily life for millions of people, yet that could so easily be remedied by the Government with a degree of physical proof.

I want to take the Minister back to something he said during last week’s evidence session, when he put a question to the Children’s Society on the issue of granting automatic status to children in care and care leavers, which we will come to later. He said to Lucy Leon, the immigration policy and practice adviser for the Children’s Society:

“You talked about automatic status—granting something under a piece of legislation to someone. Under your suggested system, how, in decades to come, would an adult evidence the status that they were granted as a child?”

As it took several attempts for the question to be heard, due to the terrible sound quality, the Minister, in his second attempt, repeated:

“If they had to evidence their status many years later, how would they do it? How would they be able to define their status…?”––[Official Report, Immigration and Social Security Co-ordination (EU Withdrawal) Public Bill Committee, 9 June 2020; cs. 64-65.]

The Minister put a very good question. In the scenario that he described, he said that if status was granted by the Home Office, how would it then be evidence? We must acknowledge that the granting of a status only solves half the problem. The ability to prove that status is the other half of the problem.

On this issue, I am inclined to agree entirely with the Minister. I politely remind him that he proposes a problem, but he is the architect of the solution to this issue. He can overcome our own reservations by granting the physical proof to his own satisfaction, however he sees fit to do so. The Government should ensure that their systems automatically issue physical proof on granting status to someone, and they should allow the millions of people on the EUSS the certainty and convenience of physical proof of status.

[Kevin Foster]

It is a pleasure to talk about the new clause and to hear that my shadow agrees with me on some issues, but we slightly disagree on how best to evidence things. I accept that the new clause is well intentioned, but it may help if I explain first that we email everyone granted status under the scheme a PDF document, which they can print and retain for their own records as confirmation of their status and for future reference, as they may wish.

Like many other countries, we are moving away from issuing physical documents to be used as evidence of a person’s immigration status and their entitlement to work and access benefits and services, and towards a system that enables direct checks through online sharing of status by the individual or via system-to-system checks. Our border and immigration system will become digital by default for all migrants, and we intend over time to replace physical and paper-based products with secure online access to immigration status information, which the migrant can share with prospective employers, landlords and service providers.

New clause 19 is unnecessary, as we are already legally required to issue everyone granted status under the EU settlement scheme with a formal written notification of their immigration status in the United Kingdom. The notification also includes information about how they can access and share their immigration status information online, and about where they can find help to do so if needed. However, it is important that we do not return to relying on insecure paper documents, which can be lost, damaged or stolen, to evidence immigration status and entitlements.

The use of digital technology is now a well-established mechanism that people use when banking and shopping. Employers, landlords and service providers are likely to be concerned by any decision to issue what is specified as an insecure physical document, such as a paper certificate. They would also see it as an undesirable retrograde step that places additional administrative burdens on them to ensure that their staff are aware of the characteristics of a certificate, which might be some years old, and what it means. It would also be very susceptible to forgery and being tampered with, which could actually make it more difficult for EEA citizens, employers and others to determine genuine entitlement. We cannot allow that to happen.

[Mr Goodwill]

Does the Minister agree that some of the identity documents issued in places such as Greece and Italy are very insecure because they do not contain biometric data? That is an example of why a paper document would not be secure.

[Kevin Foster]

My right hon. Friend hits the nail on the head, and that is particularly true in an era of modern computing, scanning and high-quality printers available at home. We used to rely on paper documents as standard across society—for example, driving licences. To be fair, the previous Labour Administration moved away from having a paper driving licence that nowadays could probably be easily printed on most printers at home, and towards a plastic version. As we now move on, most people do checks digitally—for example, how many of us have a physical MOT certificate? It is done via an online system, which allows people to check easily. It is even possible to check online whether a car has an MOT before buying it, rather than having to look for a paper certificate.

We all know about the issues there used to be with paper MOT certificates, with blank books being quite valuable. That is why we have started to move towards digital status, which is more secure. It is, of course, retained by the Home Office for many years and allows that access. Again, we touch on some of the lessons learned from the Windrush review. Part of this is about having up-to-date and easier ways to access information, rather than relying on people to recognise documents that could have been issued some decades before. It is better that we have secure digital status that can be easily shared as technology advances and people move forward. That is right, but we are still already obliged to send a PDF confirmation so that if someone wants to print something out and keep it for their records, they can.

[Holly Lynch]

I just stress the point that we are not talking about an either/or approach to digital confirmation and physical proof. I am open to the taking of physical proof, and whatever format the Minister is most comfortable with. However, we are not talking about a system where someone relies exclusively on physical proof. Something will be issued in addition to digital status. Does the Minister accept that that would address the anxieties felt by the 3 million and more?

[Kevin Foster]

Again, I appreciate the points that are being made, but a secure, easy-to-share digital status does what it says on the tin. More and more countries are heading towards that, and we have seen it in other areas of life. To be clear, the new clause specifies a paper certificate as the preferred means. I do not think that something like that adds to something that is easily shareable—and easy to update, in relation to changing passport, or in other areas. That is why we have taken this approach and why we are clear that it is what we want migration status to move towards more generally. I do not think that printing out paper certificates, and having that as an either/or, is the best place to be headed, in trying to prove status. It is better that there should be a clear process and that landlords and employers should know the process that they need to engage with when employing EEA citizens beyond the end of the transition period.

As a transition measure, employers, landlords and public service providers will continue to be able to accept the passports and national identity cards of EEA citizens until 30 June 2021—the same day as the deadline for applying to the EU settlement scheme. After that date, EEA citizens with status under the EU settlement scheme will need to share their immigration status online to prove their rights and entitlements in the UK. Alongside that, in future, when an individual accesses public services such as benefits or healthcare, the Home Office will be able to confirm their status to the service provider automatically through system-to-system checks, at the point at which the person seeks to access the service. Their non-EEA family members will also continue to be able to use their biometric residence card until we have completed the roll-out of digital services online.

Eventually, all migrants to the UK—not just from the EEA but from the rest of the world—will have an immigration status that can be accessed and shared online. Having to rely on a document to prove immigration status will be seen as old-fashioned and vulnerable to abuse. By contrast, new clause 19 would impede our ability to encourage migrants to access and share their immigration status securely online, creating confidence that it is the appropriate process, and giving confidence to those who engage with it. I hope that, with the assurances that I have given, the hon. Lady will feel able to withdraw the new clause.

[Holly Lynch]

I am grateful to the Minister for his explanation of why he rejects the new clause. I stress again the vulnerability that people feel in the shadow of Windrush, when they do not have something they can physically hold in their hand, to give an assurance of their immigration status. There is great support for the physical proof approach in the House of Lords and I suspect that we have not necessarily seen the end of the issue, but I do not want to divide the Committee at this time and I beg to ask leave to withdraw the motion.

Clause, by leave, withdrawn.

New Clause 21

Annual review: Impact on health care and social care sector

‘(1) The Secretary of State must commission an annual report from the Migration Advisory Committee on the impact of the provisions of this Act on the health care and social care sector in the UK.

(2) In undertaking the evaluation, the Secretary of State must consult—

(a) the relevant Scottish Ministers;

(b) the relevant Welsh Ministers; and

(c) the relevant Northern Ireland Ministers

(3) The report must be laid before each House of Parliament as soon as possible after it has been completed.

(4) A Minister of the Crown must, not later than three months after the report has been laid before Parliament, make a motion in the House of Commons in relation to the report.’—(Holly Lynch.)

Brought up, and read the First time.

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[Kevin Foster]

I have great respect for the hon. Member for Argyll and Bute, but I think people outside the House listening to the debate will wonder whether he has looked at today’s worrying figures on the employment market and the economic impact of covid-19. He asks where people might be found, but a significant number of people will be looking for new employment.

I welcome the opportunity to put on the record again the fact that the Government recognise the vital nature of the health and social care sector to the United Kingdom. I recognise that, in their view, hon. Members tabled the new clauses to protect a key sector. I assure members of the Committee that health and social care will be at the heart of the UK’s new points-based immigration system. The new skilled worker route will be open to a broader range of roles than the current tier 2 general route, following expansion of the skills threshold.

Under the current immigration system, only those coming to do graduate-level jobs are able to come to the UK under tier 2. In the future, our points-based skilled worker route will encompass jobs requiring school leaver qualifications. That means that all migrants—not just those from within the EU or EEA—will be able to apply for jobs meeting the skills threshold, including, as has been mentioned, senior care workers, giving a global reach to recruitment in the sector.

The general salary threshold will be set at £25,600, or the appropriate rate for the job that the person is coming to the UK to undertake. For a number of roles in health and social care, the rate will reflect the current national pay scales. We are also removing the cap and resident labour market test to make it quicker and easier to recruit workers from overseas where necessary. That will benefit all migrant workers and their employers, including those in the health and social care sector.

As with all immigration routes, we will continue to keep the points-based system under review. These changes are the first phase, and we will continue to develop and refine the points-based system based on experience.

[Brendan O'Hara]

On a point of clarity, did the Minister say that there will be sufficient capacity in the labour market to move the people losing their jobs as a result of coronavirus into the health and social care sector? Was that his argument? Does he recognise that there are currently 122,000 vacancies in England alone, and that there are projected to be another 320,000 over the next 10 years due to retirement? Does he really think that that will be made up by people losing their jobs?

[Kevin Foster]

Many people will be surprised to hear the hon. Gentleman suggest that one of the issues that the UK is facing at the moment is a shortage of labour. Sadly, we are seeing the impact of covid, and we know that health and social care will play a key part in providing job opportunities for those who need new employment. I am seeing that in my constituency. Many people would be surprised if there were Members in this building who did not think we should prioritise getting people who have faced the impact of the economic change into new skills and employment. That should not be a controversial point. I suspect that many of his constituents would be rather surprised if that is the point that he wished to make.

[Brendan O'Hara]

I am trying to stick to the Bill, but is the Minister saying to the country and people who are losing their jobs that, contrary to what the Prime Minister and the Chancellor have been saying, those jobs are not coming back, and they had better go find something else? The message has been that this is a temporary blip, we will recover from it, and the jobs will be coming back.

[Kevin Foster]

Thankfully, we will see many jobs come back. The Chancellor himself said that it will be difficult to save every role, and we can see that some of the changes in our economy, particularly in the retail sector, have been sped up. I am sorry that the SNP is looking to put its political philosophy ahead of the practical situation. I do not think it is controversial to say that, in Scotland, where there are vacancies, we should be trying to make sure Scottish-based workers are going back to work. I think the SNP will find it very interesting when it meets the electorate next May and explains why that was not its priority.

[Holly Lynch]

Does the Minister not accept the example that we have just been through? The Government, having recognised the labour shortage in agriculture, made a co-ordinated attempt to redeploy people who are currently out of work into the agriculture sector, but it proved incredibly difficult and the numbers have not transpired in reality. If he is saying that we can do something similar for social care, we would be keen to see the plan. What is his plan if we cannot redirect those people into social care in the timeframe that we are talking about?

[Kevin Foster]

There is a slight difference between talking about temporary roles in seasonal agriculture and carers, which is not a seasonal job. I represent a constituency with plenty of seasonal roles. It would be odd to start describing care as a seasonal one; it is not, for obvious reasons. People’s care needs do not vary by the season in the way the agricultural sector’s needs do in terms of picking fruit and veg.

Certainly, there is a need to make sure that we have the appropriate structure. Again, I think that people outside this room would be stunned that Opposition Members do not think that, at the moment, we should prioritise getting UK workers back to work. That might explain why, in December, people did not feel that those were the parties they wished to trust with being in government.

Moving on, our new firmer, fairer and swifter immigration system will have benefits for all sectors of the economy, but we recognise the special role that the NHS and those connected with it have in our society, which the events of the last few months have demonstrated clearly. That is why, in line with our election manifesto, the Government are introducing a healthcare visa, which will provide eligible health and social care workers with fast-track entry, the support of a dedicated team in UK Visas and Immigration and reduced visa fees.

As I said earlier, we are looking to exempt all those working in health and social care from paying the immigration health surcharge. We are also investing in social care. For example, in response to the coronavirus crisis, we have announced £2.9 billion to help local authorities respond to pressures in key services, such as adult social care, and to enhance the NHS discharge service, which allows patients to return home safely. No one should doubt our support for that critical sector of our society.

The hon. Member for Halifax talked about damning evidence, so it is worth remembering the evidence that the chair of the Migration Advisory Committee, Professor Brian Bell, gave to the Committee on 9 June. He said:

“If people say that the response to the social care issue should be, ‘Well, employers should be allowed to bring in as many migrants as they want at the minimum wage,’ first, that does not sound like the low-wage problem of the social care sector is being dealt with, and secondly it suggests that one of the groups that will really suffer from that is the social care workers. You are saying that you are going to keep on allowing their wages to be held down by allowing employers to bring in workers at the minimum wage”.––[Official Report, Immigration and Social Security Co-ordination (EU Withdrawal) Public Bill Committee, 9 June 2020; c. 22, Q44.]

On new clause 21, the MAC is an independent non-departmental public body that advises the Government on immigration matters. It has a UK-wide remit and works across Government to provide transparent, independent, evidence-based advice. It currently undertakes work based on commissions from the Government; the Government determine the matters that they believe require consideration and ask it to consider and advise. As we have touched on, the Government are committed to expanding that role. This will be the first year that the MAC has produced an annual report, which is an important development to increase transparency and provide more regular evidence on issues relating to immigration.

In future, in addition to specific commissions from the Government, the MAC will be able to undertake other work that it considers necessary, including regular reporting on migration matters. I therefore cannot support a clause that requires it to look annually at a specific sector. As hon. Members will be aware, its reviews are thorough, and it takes time to seek views and analyse a broad range of evidence from across the UK. That means that the reports often take many months to complete, and we must be mindful of its finite resource and time. Requiring it to undertake an annual review on health and social care may prevent it from undertaking reviews on other issues where there may be a more pressing need, or may duplicate work that it plans to do.

I am also unable to support new clause 49, which would require the Government to consider the impact of the Bill on EEA citizens, but which ignores the new points-based system that we will implement at the beginning of January 2021. The Government have already published an impact assessment of the points-based immigration system, which sets out the impacts on all those who will use the system, not just those from the EU or the EEA.

We understand fully that ending free movement and the proposals for the future immigration system will have an impact. However, with the dramatic changes that we have seen in the UK labour market over recent weeks, it is right that we focus on getting UK-based workers back into employment and ensuring that employers are investing in and retaining the existing workforce. Migration policies need to be considered alongside that work, not in isolation from it. The Migration Advisory Committee will have the opportunity to decide what it wishes to consider alongside its annual report.

--- Later in debate ---

[Stuart C. McDonald]

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.

[Kevin Foster]

I thank the hon. Members for Halifax and for Cumbernauld, Kilsyth and Kirkintilloch East for tabling the new clauses. The objective of the immigration skills charge is to incentive UK-based employers to take a long-term view of investment and training, and it is designed to address the UK’s historical underinvestment in training and upskilling. The income raised is allocated to the Department for Education and the devolved nations to address skills and training gaps in the resident workforce.

We can all agree that immigration must be considered alongside investment in, and development of, the UK’s resident workforce, and it is only right that we provide those workers with opportunities to develop skills in order to further their careers and to contribute to the future economy. That is with particular reference to the situation we see at the moment in our country, where many people might need to find new employment opportunities due to the economic impact of covid-19.

The Committee may also wish to note that the introduction of the charge was supported by the independent Migration Advisory Committee as part of its December 2015 review of the tier 2 route.

The Migration Advisory Committee also recommended that the charge be extended and retained to cover employers of EEA citizens in the future immigration framework. In its September 2018 final report on the impact of EEA migration in the UK, the MAC said:

“We believe that extending the ISC to cover EEA citizens under any post-Brexit work-permit scheme would, on balance, be appropriate.”

It would also make no sense, now that we have left the European Union, to apply exemptions based purely on being an EEA national, as this suggests.

On new clause 22, the Government recognise the vital nature of the health and social care sector to the United Kingdom. Health and social care will be at the very heart of the UK’s new points-based immigration system, and we are doing all we can to ensure that the new system is fair, attractive and welcoming to the best and brightest overseas migrants. The new skilled worker route will be open to a broader range of roles in the sector—following the expansion of the current skills threshold—than the tier 2 general route.

As I mentioned earlier, the income for the immigration skills charge is used to address skills and training gaps in the resident workforce, including the healthcare sector. It is right, therefore, that we focus on providing UK resident workers with the opportunity to develop skills that will enable them to become the healthcare heroes of tomorrow—the revenue from the immigration skills charge does that. For those reasons, the Government are not prepared to accept the two new clauses.

[Holly Lynch]

We absolutely cannot wrap our heads around that, given how much money is being taken out of the NHS frontline, which seems to be an indication that the whole approach is not functioning as intended. However, with that in mind, I will not seek to divide the Committee. But the Labour party may return to this point at a later date. I beg to ask leave to withdraw the motion.

Clause, by leave, withdrawn.

Ordered, That further consideration be now adjourned. —(Tom Pursglove.)

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

Kevin Foster Excerpts

Committee stage & Committee Debate: 7th sitting: House of Commons
Thursday 18th June 2020 Public Bill Committees

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

It is a pleasure to serve under your chairmanship, Sir Edward. I welcome the general tone of the debate that we have had so far.

As the Migration Advisory Committee—or MAC—has already made clear in its report of September 2018, agriculture is an exceptional case, as we believe the labour market is totally distinct from the labour market for resident workers. For this reason, although the MAC recommended against a dedicated route for recruiting workers based on paying at or near the legal minimum—advice that this Government accept—it did consider that the position was different in respect of the UK’s world-leading agricultural sector.

Accordingly, on 6 March last year the Government announced the implementation of a nationwide pilot to enable non-EU migrant workers to undertake seasonal work on UK farms. The seasonal worker pilot admits temporary workers from outside the European Union to work in edible horticulture for up to six months. The pilot scheme ran last year on the basis of 2,500 places, and on 19 February, in line with the commitment made in our election manifesto, we increased the annual quota for the second year of the pilot from 2,500 places to 10,000 places.

--- Later in debate ---

[Stuart C. McDonald]

Can the Minister give us a rough outline of when a review of the pilot scheme will take place and when any sort of decision can be expected on how it will look in the future?

[Kevin Foster]

We expect to undertake that evaluation later this year and then announce the results as part of confirming the final details of the future migration scheme. If the hon. Gentleman’s next question is about whether we will take into account the unique circumstances this year, the obvious answer is yes, given the restrictions on travel. We have found that the net is going wider in trying to recruit. Just creating migration opportunity does not automatically bring workers to the United Kingdom, as we have seen with free movement—for example, it used to be common for people from parts of western Europe to come here to do this work, but now it is not. Again, migration cannot be seen as an alternative to providing attractive terms and conditions that will encourage people to wish to do the work. Our intention is to make that announcement later this year and then confirm our intentions, in good time for next year’s season.

The Department for Environment, Food and Rural Affairs already conducts quarterly seasonal labour in horticulture surveys, explicitly looking at the questions of supply and demand of seasonal labour in horticulture. I am therefore not persuaded that a further annual MAC report would significantly add to our knowledge on this matter, especially when the MAC will in future have more ability to work on matters of its own choosing, including an annual report on the migration system, in which it can choose to cover the areas suggested in the new clause. If we are giving the MAC the ability to choose what it sees as the priorities in its annual report, with debate in the House on that report, it seems strange to give it that freedom and then compel it to do a number of reports by primary legislation. With those reassurances, I hope that the hon. Member for Halifax will feel able to withdraw her new clause.

[Holly Lynch]

I am grateful to the Minister for those assurances. We welcome the increased flexibility that the MAC will have. I wonder whether there will be an opportunity for Opposition parties and MPs to cast a particular spotlight on an area, so that MPs can feed into that process with the MAC.

It is in everyone’s interest that we continue to see the wide availability of fresh fruit and veg for families. I accept the point made by my friend the hon. Member for Cumbernauld, Kilsyth and Kirkintilloch East that we would like to see any assessment of this sector be broader than seasonal agricultural workers and take into account the requirements of the workforce right across the food sector.

Having said that, I do not intend to push the new clause to a vote. I beg to ask leave to withdraw the motion.

Clause, by leave, withdrawn.

New Clause 25

Report on status of EEA and Swiss nationals after the transition

“(1) This Act shall not come into effect until a Minister of the Crown has laid a report before each House of Parliament setting out the impact of the Act on EEA and Swiss nationals in the UK.

(2) A report under subsection (1) must clarify the position of EEA and Swiss nationals in the UK during the period between the end of the transition period and the deadline for applying to the EU Settlement Scheme.

(3) A report under subsection (1) must include, but not be limited to, what rights EEA and Swiss nationals resident in the UK on 31 December 2020 have to—

(a) work in the UK;

(b) use the NHS for free;

(c) enrol in education or continue studying;

(d) access public funds such as benefits and pensions; and

(e) travel in and out of the UK.”—(Holly Lynch.)

This new clause would require Government to provide clarity on the rights of EU nationals in the EU in the grace period between the end of the transition period, and the closure of the EU Settlement Scheme.

Brought up, and read the First time.

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

--- Later in debate ---

[Stuart C. McDonald]

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.

[Kevin Foster]

I thank the hon. Member for Halifax for tabling new clause 27 because it gives me a chance briefly to outline the Government’s commitments to maintaining the common travel area arrangements, including the associated rights of British and Irish citizens in each other’s states, and the status of Irish citizens under the EU settlement scheme arrangements.

For brief background, the common travel area is an arrangement between the UK and the Republic of Ireland, as well as the Isle of Man, Guernsey and Jersey. It allows British and Irish citizens to travel freely between the UK and Ireland, and to reside in either jurisdiction. It also facilitates the enjoyment of several associated rights and privileges—in effect, by forming one area for immigration entry purposes.

As mentioned when we debated clause 2, both the UK Government and the Irish Government have committed to maintaining the CTA. The CTA is underpinned by deep-rooted historical ties, and maintaining it has been and continues to be a shared objective of both nations. Crucially, it predates the UK’s and Ireland’s membership of the European Union. It has been agreed with the EU that the UK and Ireland can continue to make arrangements between ourselves when it comes to the CTA.

Irish citizens in the UK and British citizens in Ireland will continue to have access to their CTA associated rights. Both Governments confirmed that position on 8 May 2019, when we signed a common travel area memorandum of understanding, which I have mentioned previously to the Committee. It is worth noting that that also builds on our commitments in the Belfast agreement that are part of international law.

The Government continue to work closely with the Irish Government to ensure that our citizens can access their rights as set out in the memorandum of understanding. This has been and will continue to be taken forward through bilateral instruments, and we have committed to updating domestic legislation. This is why we are proposing clause 2 of this Bill, which will ensure that Irish citizens can enter and remain in the UK without requiring permission, regardless of where they have travelled from, except in a very limited number of circumstances, which we debated under clause 2.

New clause 27 would also require the Government to publish details of the rights and benefits provided by the EU settlement scheme. The European Union (Withdrawal Agreement) Act 2020 protects the residence rights of European economic area citizens who are resident in the UK by the end of the transition period and eligible family members seeking to join a relevant EEA citizen in the UK after that time. EEA citizens and their family members can apply under the EU settlement scheme for UK immigration status, so that they can continue to work, study, and, where eligible, access benefits and services such as free NHS treatment. We continue to make every effort to ensure that people are aware of the benefits of applying to the EU settlement scheme.

--- Later in debate ---

[Stuart C. McDonald]

Given what the Minister says, people will have to decide whether they want to apply for the EU settlement scheme, or whether they want to continue to rely on their CTA rights. They could make that decision much more easily if they knew precisely what their CTA rights would be. Can he say anything about when the Government will take forward a programme of work to ensure that Irish citizens continue to enjoy the rights that they have now? When can people can see this on the statute book, rather than just hear it being spoken about? People are describing these as rights written in the sand.

[Kevin Foster]

Clause 2 explicitly puts Irish citizens’ rights on the statute book and removes the anomaly by which an Irish citizen is treated differently depending on how they enter the country—whether they arrive on a flight from Dublin or a flight from Brussels, whether under EEA free movement or CTA rights. That difference is removed completely by clause 2; it makes it clear that the same position applies, however an Irish citizen arrives in the United Kingdom.

I am very much a supporter of the provisions of the Belfast agreement, under which a person can identify as British, Irish or both. Effectively, in the United Kingdom, the person will be treated as if they were a British citizen, in terms of their rights, including their right to live here, and the services they can access. There is a very tiny number of exceptions. On this Committee, we have all struggled, as have the witnesses, to find in recent times and under modern legislation an example of an Irish citizen being deported from the United Kingdom. The position outlined in a written statement in 2007—and yes, I know who was in government in 2007—still stands, and we have not had any representations from the Irish Government on changing that. I suspect that if we looked to behave in an unreasonable way towards an Irish citizen, the Irish Government would be very clear in their response.

[Stuart C. McDonald]

The Minister is obviously doing his bit by putting clause 2 into the Bill, but what I am really asking—I suspect that he does not have the answer today—is what other work is under way across Government to make sure that Irish citizens have rights on housing, health and everything else on exactly the same basis as before, and to make sure that the loss of free movement rights does not mean that they will be in a worse position. Some sort of timetable on what is going on, and how the change is being processed, would be useful for lots of citizens.

[Kevin Foster]

I thank the hon. Member for quite a constructive intervention. He obviously will appreciate that those arriving after the transition period would not have free movement rights, but those arriving before are covered by the withdrawal agreement. I am more than happy to get a letter to him setting out how we will make sure of the position that he mentions. I suspect that his concern is that when an Irish citizen is in the United Kingdom, talking to a person at a Department for Work and Pensions office, or a landlord, and presents them with an Irish passport, it should be understood inherently that it has exactly the same status in terms of renting, or accessing a service or employment, as a British passport, particularly given the different commentary. I am more than happy to set out in writing to the Committee the work that will be done on that point.

In summary, the Government have already made clear the rights available to individuals under the common travel area and the EU settlement scheme following the end of free movement, and we will continue to do so. I therefore respectfully ask the hon. Member for Halifax not to press the new clause for the reasons I have outlined.

[Holly Lynch]

I welcome the fairly constructive way in which the Minister has engaged on this point. The points made in intervention by my friend from the SNP, the hon. Member for Cumbernauld, Kilsyth and Kirkintilloch East, do still stand. I reinforce that there will continue to be a desire and unanswered questions in this area. There are certainly merits to committing more of what we have discussed to primary legislation, but I will not press the new clause at this point. I beg to ask leave to withdraw the motion.

Clause, by leave, withdrawn.

New Clause 28

Annual review: Higher education

(1) The Secretary of State must commission an annual report from the Migration Advisory Committee on the impact of the provisions of this Act on the number of overseas students in the UK from the EEA and Switzerland.

(2) The report must be laid before each House of Parliament as soon as possible after it has been completed.

(3) A Minister of the Crown must, not later than three months after the report has been laid before Parliament, make a motion in the House of Commons in relation to the report.—(Kate Green.)

Brought up, and read the First time.

--- Later in debate ---

[Stuart C. McDonald]

Again, I fully support and echo much of what the hon. Member for Stretford and Urmston has said. If anything, I would argue that the review requested in the new clause should be slightly broader and encompass not only student recruitment but staff recruitment, because that is an important issue for our universities. I also suggest that the report needs an urgent timeframe, because the clock is ticking down to a new academic year and a new recruitment period, but she made all sorts of valuable points.

Some changes made to the Government’s original White Paper have improved matters, such as the reduction in the salary and skills thresholds, but there remain lots of challenges, and of course just now universities are under immense pressure in dealing with the coronavirus pandemic and its fallout. I have spoken with Universities Scotland about the review suggested in the new clause, and what follow are some of the issues it raised. What steps are the Minister and the Government taking to get the visa system working again—lots of visa processing centres remain closed—and how can alternative measures be put in place to ensure we can recruit students at the moment?

What steps will the Government take to ensure that students can start courses online with confidence—for example, by extending the window from three months to six months so that people can have extra time to arrive in the UK from when their visa becomes valid? What steps are being taken to ensure that online study does not disqualify students from the graduate route, and will the Minister consider increasing the graduate route length to three or four years and promoting it intensively, because as we he heard awareness rates are still very low?

Finally, the report should also look at whether consideration has been given to waiving tier-4 visa fees for one year only? In the longer run, what steps are being taken to ensure that our visa fees are competitive and allow us to compete with countries such as Canada and Australia, which have such strong offers in terms of fees and post-study work. These are all things the Government should think about as part of the report, and we think the new clause would be a welcome addition to the Bill.

[Kevin Foster]

The new clause provides the Committee with a useful opportunity to consider the important issue of international students in the UK, and I am grateful to hon. Members for tabling it.

I want to start by picking up on the point made about Erasmus by the hon. Member for Stretford and Urmston. My constituency sees a large number of Erasmus students, and we very much welcome it. At the moment, the scope and content of EU programmes post 2020, including Erasmus, is being negotiated within the EU institutions and has not been finalised. The Government have made it clear that the UK is ready to consider participation in certain EU programmes, in particular Erasmus+, once the EU has agreed the baseline in its 2021-27 multiannual financial framework. Given that that has not yet been agreed, we are preparing for every eventuality and considering a wide range of options with regard to the future of international exchange and collaboration in education and training if it is not possible to secure a deal on Erasmus+. I want to give reassurance that the will is there. Once the EU has agreed its baseline, we will look to continue to be part of that valuable programme.

The Government strongly welcome international students, as I know Members across the Committee do. We see the academic and creative energy they bring to communities across our Union, including Belfast, Glasgow, Cardiff, Birmingham and Exeter. The Committee will be pleased to hear that the UK is one of the world’s leading destinations for international education, and hundreds of thousands of talented students choose to come to the UK’s world-leading institutions.

The Higher Education Statistics Agency has found that the total number of international students in higher education in the UK increased by 10% between 2014-15 and 2018-19, with the latest data suggesting that around 140,000 EU domiciled and 340,000 non-EU domiciled students enrolled in higher education institutions in the UK. The most recent set of immigration statistics show some very welcome growth in the number of people studying at our institutions from China and India in particular.

I want to reiterate that the Government place no limit on the number of international students who can come to study in the UK and have no intention ever to introduce any such limit in future under the new migration system. Indeed, as set out in the “International Education Strategy”, published last year, it is the Government’s ambition to increase the number of international higher education students studying in the UK to 600,000 by 2030. However, I recognise that we must not stand still if we are to continue to be a leading destination for international students. The Minister of State for Universities recently announced a new international education champion, Sir Steve Smith, to spearhead the UK’s efforts in the international student market. The Minister and I liaise regularly about the role that the migration system can play in facilitating that.

In summer 2021, we will launch a new graduate route, which will enable international students who have successfully completed their degree to remain in the UK for two years post study to work or look for work at any level, in order to kick-start their career. That will ensure that the UK continues to attract the brightest and the best and that our offer to prospective international students remains competitive internationally. I know that this policy change has significant cross-party support. It was even one of the first requests made by an SNP MP in a recent Opposition day debate on migration, in which my hon. Friend the Member for Moray and I took part, and I am pleased that it has been welcomed by the education sector.

I want to respond to the points made about eligibility for this route. We have published guidance, which confirms that those having to study overseas by distance learning due to the current circumstances will still be eligible for the graduate route. I do not blame Opposition Members for not having seen it, because it came out this morning, so I do not make that point to have a go at them. That followed discussions that the Minister of State for Universities and I had.

We will not penalise people for circumstances that are beyond their control, and we are working to finalise some of the details. Particularly for those on a one-year course—who will predominantly be postgraduate students, where we probably have a record of compliance and they have a very high skill level—we will be working to find that they have spent some time in the United Kingdom. For those starting three-year courses, we will not hold against them an absence from the United Kingdom caused by having to do distance learning, as a general principle.

We are looking at a range of other measures we can take to facilitate applications for tier 4, particularly from those who are applying to a new course having already been in the United Kingdom, many of whom are postgraduates or have done foundation courses. We have had strong representations on the extension to six months. It is clear that that will not be a huge advantage to someone looking to start a course in late September or October, given that it is now mid-June, but we are looking at where we can make some appropriate changes to the migration rules to reflect the unique situation. We will of course continue to work with Universities UK to ensure that those changes are appropriate. As I say, we have today published some guidance, which I am sure Committee members will find interesting. I will make sure that a link to it, or perhaps a copy of it, is sent round, to make one or two of these points clear.

--- Later in debate ---

[Holly Lynch]

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

The new clause is not unlike some of the other proposals we have made in this sitting to ask the Government to go away and develop an evidence base, shining a spotlight on certain sectors, which we hope would then inform more concrete proposals. This proposal has a particular focus on the creative industries, temporary migration and visa requirements for working arrangements.

We understand that the Government are currently negotiating a reciprocal agreement with the EU that would allow UK citizens to undertake some paid business activities in the EU without a work permit on a short-term basis. However, the precise details, including the range of activities, the documentation needed and the time limit, are all still to be negotiated; certainly the details are still to be put into the public domain.

One sector directly affected is culture, music and the performing arts. The creative sector contributes over £100 billion a year to the UK economy and employs over 3 million people, according to the Confederation of British Industry. There are growing concerns in this sector about the lack of progress on a reciprocal agreement being reached before the end of the transition period, and whether it would guarantee short-term work and visits for EU nationals, all of which is critical for the survival of the music profession.

Britain’s music industry has long attracted world-class artists, entertainers and musicians to perform in the UK, but this is all very precarious if visa issues are not resolved by the end of the year. This is also one of the sectors hardest hit by the coronavirus, as events and performances will no doubt be one of the last elements across society to return to normal.

Working in the European Union, whether that involves performing, recording, teaching or collaborating, is an essential part of the music professional’s ability to earn. The music industry is very transient and often there is not enough work available in the UK for musicians to sustain livelihoods, but going abroad has often provided a solution. We are not talking about performers earning megabucks, although of course we want the UK to be an attractive stage for them and for our international talent in the rest of Europe—for example, UK performers who may go to work in a holiday resort for two months of the year, or may tour venues in a number of European countries.

If the UK leaves without a comprehensive arrangement in place, musicians could very quickly find themselves trying to navigate the entry requirements for each of the 27 EU member states, which risks causing major disruption to the UK’s music industry. Without effective reciprocal arrangements, the UK may see a decline in skilled culture sector workers entering the country from the EU. If the music industry is to survive and we are to continue attracting the best talent from across the world, musicians and performers must be able to continue travelling abroad to work with ease after the transition period. It is the same for many other businesses and industries.

The Home Office previously pledged that it would allow EU bands to enter the country freely for gigs post Brexit, and that it would continue to include special arrangements for creative workers. A potential solution might be a multi-entry touring visa valid for about two years and EU-wide, covering all 27 member states, which I know is the preference of the Incorporated Society of Musicians.

I hope the Minister agrees that the UK must continue to attract musicians and performers from all over the world with an immigration system that is fit for purpose. Providing the best possible situation to do that would be achieved by commissioning the report set out in new clause 29.

[Kevin Foster]

It might help if I briefly outline how the current system for those visiting the UK for business purposes operates. I note the shadow Minister has focused on creative purposes, but the wording in the new clause is “business visitor”.

The Government welcome genuine visitors to the UK, and this is not going to change once free movement has ended. We want to ensure legitimate travellers who support our economy and enrich our culture can continue to come to the UK smoothly in future. The UK’s current immigration rules for visitors are already fairly generous. Visitors can, in most cases, come to the UK for up to six months, and take part in a wide range of activities beyond simply tourism, or visiting family and friends.

Visitors can attend conferences, carry out independent research, undertake work-related training and maintain and install equipment where there is a contract with a UK company. We also allow audit activity and knowledge transfer where these take place in an intra-company setting. Visitors can undertake creative and sporting activities, and there are also some exceptional instances in the visitor rules whereby we allow payment by a UK source for certain activities, including performing at a permit-free festival, such as the Edinburgh festival. There are also provisions for paid performance engagement—or PPE, as we call it—whereby an individual who has been invited by a creative organisation can be paid for a short period for performing in the UK.

Those are already available to non-visa nationals, such as Canadian, Australian, Japanese and New Zealand citizens, and we have made it clear that EEA and Swiss citizens will not need a visa to undertake these activities, and will be able to travel and enter the UK on that basis. The EU has already legislated so that UK nationals will not need a visa when travelling to the Schengen area for short stays of up to 90 days in any 180-day period, as opposed to our slightly more generous provisions for visitors.

The Government recognise that it is desirable for UK nationals to have greater certainty about what they can do when travelling to the EU on a temporary or short-term basis, hence future arrangements on entry and temporary stay in the EU are subject to ongoing negotiations. Further, we look forward to reaching agreement on the future entry and temporary stay of natural persons with Switzerland and the EEA-European Free Trade Association states. For obvious reasons, we cannot legislate that the 27 member states of the EU offer a deal to the UK, but we hope we can come to a mutually beneficial agreement.

The UK’s visitor rules are kept under regular review. In our points-based system policy statement from February, we committed to

“continue our generous visitor provisions, but with simplified rules and guidance”.

We have engaged with stakeholders to understand how the rules can be simplified and improved and will continue to do so once free movement ends. For these reasons, there is no requirement for an additional report, and the new clause would be an odd addition to the Bill, for reasons I have set out in response to previous new clauses. I would therefore ask the hon. Member for Halifax to consider withdrawing the new clause.

[Holly Lynch]

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.

--- Later in debate ---

[Holly Lynch]

I lend our support to the new clause. I anticipate that the Minister will reflect on the developments with the MAC, in that plans are afoot for an annual assessment of labour requirements across the UK, which will influence our immigration approach. However, I echo what my friend from the SNP, the hon. Member for Cumbernauld, Kilsyth and Kirkintilloch East, has said. We would very much welcome that report being placed before both Houses, so that there can be further debate across this place.

We have called for reports on the sectors we are most concerned about, which we have debated and discussed this morning, but there will be so many others. As with any change like this, there will be unintended consequences. We want the opportunity to mitigate the impact of the end of free movement, and to debate that in Parliament. That would, we hope, lead to much more dynamic decision making on changes to mitigate the impact of the ending of free movement on further sectors. We welcome the new clause.

[Kevin Foster]

I thank the shadow spokespeople for their comments and the constructive way in which they have put forward the new clause, which hits on an important point. Certainly neither I nor anyone else in government wants businesses to fail due to an unavailability of labour, although, sadly, as many outside this room would note, the impact of covid-19 on our economy means that not many people would see that as a likely issue over the coming period, for all too obvious reasons.

It is precisely for that reason that the Government are bringing forward the new points-based immigration system. It will be a single global system that will treat everyone alike and will allow people to come to the UK on the basis of their skills and the contribution they can make, not their nationality or where their passport is from. It will be a fair system, and we are introducing a number of important elements, such as reducing the skills and salary threshold below those in the tier 2 system, and abolishing the cap and resident labour market test, which will remove a lot of bureaucracy for employers engaging with the system.

The system will also be flexible. We are making it points-based, precisely so that we can facilitate the entry of those with the greatest skills or those who are coming to fill jobs where there is the greatest need. The system will be kept under careful review.

I do not think anyone would disagree that it is profoundly important to look at the effect that immigration is having on the labour market. That means looking at the situation for employers and the impact on UK workers seeking employment. The new clause, focusing as it does solely on employers, would give only one side of the story, leaving workers’ interests at a disadvantage. I also do not believe that the Government are best placed to look at this issue; this type of request is why the independent Migration Advisory Committee exists and is commissioned to produce expert, independent reports on the interplay between immigration and the labour market. I do not believe that what it produces could be further improved by another report from the Government. As part of its work, the MAC already looks at which occupations in the UK are currently experiencing a shortage of workers and, crucially, where it thinks it would be beneficial to fill vacancies through immigration. We maintain shortage occupation lists to recognise that.

The work of the MAC and the reports it produces go beyond the narrow scope of the work proposed by the new clause. The MAC looks at the whole immigration system, rather than just changes to the immigration rules. The MAC also looks at the impact of all migration, rather than limiting itself to EEA and Swiss migration, as the new clause seeks to do, although I accept that the wording is probably because of the scope of the Bill. The future immigration system will be a global one, where an EEA citizen has the same basic rights to migrate to the UK as someone, for example, from the Commonwealth.

The new clause would simply result in duplication of work already being undertaken by the pre-eminent labour market economists and migration specialists of the MAC. Parliament regularly debates the MAC’s reports. I hope that the MAC’s annual reports will help to inform regular, structured debates on migration—something to which Opposition Members alluded—allowing us to take a more considered view, rather than simply reacting to particular proposals or events. I have outlined the role that the MAC will play. I hope that the hon. Member for Cumbernauld, Kilsyth and Kirkintilloch East will feel able to withdraw his new clause.

[Stuart C. McDonald]

I am grateful to the Minister, and I beg to ask leave to withdraw the clause.

Clause, by leave, withdrawn.

New Clause 41

Children in care and children entitled to care leaving support: Entitlement to remain

‘(1) Any child who has their right of free movement removed by the provisions contained in this Act, and who are in the care of a local authority, or entitled to care leaving support, shall, by virtue of this provision, be deemed to have and be granted automatic Indefinite Leave to Remain within the United Kingdom under the EU Settlement Scheme.

(2) The Secretary of State must, for purposes of subsection (1), issue guidance to local authorities in England, Scotland, Wales and Norther Ireland setting out their duty to identify the children of EEA and Swiss nationals in their care or entitled to care leaving support.

(3) Before issuing guidance under this section the Secretary of State must consult—

(a) the relevant Scottish Minister;

(b) the relevant Welsh Minister; and

(c) the relevant Northern Ireland Minister

(4) The Secretary of State must make arrangements to ensure that personal data relating to nationality processed by local authorities for purposes of identification under subsection (1) is used solely for this purpose and no further immigration control purpose.

(5) Any child subject to subsection (1) who is identified and granted status after the deadline of EU Settlement Scheme (“the Scheme”) will be deemed to have had such status and all rights associated with the status from the time of the Scheme deadline.

(6) This section comes into force upon the commencement of this Act and remains in effect for 5 years after the deadline of the EU Settlement Scheme.

(7) For purposes of this section, “children in the care of the local authority” are defined as children receiving care under any of the following—

(a) section 20 of the Children Act 1989 (Provision of accommodation for children: general);

(b) section 31 of the Children Act 1989 (Care and Supervision);

(c) section 75 Social Services and Well-being (Wales) Act 2014 (General duty of local authority to secure sufficient accommodation for looked after children);

(d) section 25 of the Children (Scotland) Act 1995 (Provision of accommodation for children);

(e) Article 25 of the Children (Northern Ireland) Order 1995 (Interpretation); and

(f) Article 50 Children of the (Northern Ireland) Order 1995 (Care orders and supervision orders).

(8) For the purposes of this section, “children entitled to care leaving support” means a child receiving support under any of the following—

(a) paragraph 19B of Schedule 2 Children Act 1989 (Preparation for ceasing to be looked after);

(b) s.23A(2) Children Act 1989 (The responsible authority and relevant children);

(c) s.23C(1) Children Act 1989 (Continuing functions in respect of former relevant children);

(d) section 104 of the Social Services and Well-being (Wales) Act 2014 (Young people entitled to support under sections 105 to 115);

(e) sections 29-30 Children (Scotland) Act 1995 (Advice and assistance for young persons formerly looked after by local authorities) as amended by s.66 Children and Young People (Scotland) Act 2014 (Provision of aftercare to young people); and

(f) Article 35(2) Children (Northern Ireland) Order 1995 (Persons qualifying for advice and assistance.).’—(Dame Diana Johnson.)

This new clause aims to ensure that the children of EEA and Swiss nationals who are in care, and those who are entitled to care leaving support, are granted automatic Indefinite Leave to Remain under the EU Settlement Scheme to ensure they do not become undocumented.

Brought up, and read the First time.

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

Kevin Foster Excerpts

Committee stage & Committee Debate: 8th sitting: House of Commons
Thursday 18th June 2020 Public Bill Committees

[Holly Lynch]

I would welcome that in the event that there is no alternative and that some of the more regular items of documentation are not available. In taking that route, however, we are still asking children to go away and gather a potentially enormous amount of information and documentation. When we know that such children are eligible, why can we not just deal with this issue in a streamlined way through local authorities and the Home Office?

I hope I have satisfied the Minister’s reservations about this approach. We are talking about a cohort of children and young people who are our responsibility; we the state are acting as their legal guardians. Let us do the best we can for them and at least give them confidence in their immigration status, in the hope that they can go on to overcome all their challenges and build happy lives here in the UK.

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

It is a pleasure to serve under your chairmanship, Mr Stringer. I will speak to the two new clauses that have been moved. I appreciate the intentions behind them, and the concerns and genuine points that have been raised. That is why, from the outset, there have been arrangements in place to ensure that the EU settlement scheme is accessible to all, including looked-after children and care leavers. Prior to the full launch of the scheme in March 2019, agreements were reached and plans put in place with local authorities to ensure that relevant children and care leavers receive the support they need in securing their UK immigration status under the scheme.

Local authorities in Great Britain, and health and social care trusts in Northern Ireland, are responsible for making an application under the EU settlement scheme on behalf of an eligible looked-after child for whom they have parental responsibility by way of a court order. Their responsibilities to signpost the scheme and support applications in other cases have also been agreed. They concern children for whom there is no court order but where the local authority has a clear interest in supporting the best interests of the child—for example, children accommodated by the local authority, children in need and care leavers.

The Home Office has implemented a range of support services to ensure that local authorities and health and social care trusts can access help and advice when they need to. We have engaged extensively with relevant stakeholders, such as the Department for Education, the Local Government Association, the Ministry of Justice, the Association of Directors of Children’s Services and equivalents in the devolved Administrations, to understand and address the needs of looked-after children and care leavers, and to ensure they are all supported. Guidance has also been issued to all local authorities on their role and responsibilities for making or supporting applications under the EU settlement scheme for looked-after children and care leavers. The Home Office is holding regular teleconferences specifically for local authority staff who are responsible for making relevant applications, in order to support them and provide a direct point of contact for them within the Home Office.

A new burdens assessment has been conducted, and funding has been issued to local authorities that have responsibilities for carrying out specific duties in relation to looked-after children and care leavers, to ensure they are adequately funded to do such work. Along with the Minister for Children and Families in the Department for Education, I have written to lead council members to underline the importance of the work that their local authorities are undertaking to ensure that eligible looked-after children and care leavers make applications to the EU settlement scheme, and to highlight the support available. Home Office caseworkers are directly working with local authority staff who are responsible for making applications, as well as with organisations that specialise in working with children, such as the Children’s Society and Coram.

Additionally, the Home Office has provided £9 million of grant funding to 57 voluntary organisations across the UK in order to support vulnerable citizens in applying to the EU settlement scheme. They include several organisations specialising in support for vulnerable children and young people. We have now committed a further £8 million for such work, allowing charities and local authorities to bid for grant funding to provide support to vulnerable people and help ensure that no one is left behind. To reassure the Committee, we are continuing the existing arrangements until new arrangements and a new bidding process are completed.

[Dame Diana Johnson (Kingston upon Hull North) (Lab)]

I am listening carefully to all the steps that the Home Office is taking, but is the Minister now in a position to publish the information about the number of children affected by needing to apply for the EU settlement scheme? I understand that his Department has already undertaken that work.

[Kevin Foster]

It is probably worth saying that, as of today, we cannot publish a final list of all who will be eligible under the EU settlement scheme because the transition period extends to 31 December this year. Therefore, people may yet arrive in the country who would be eligible to apply under the scheme. As part of the quarterly statistics publication—not the monthly one—we publish the number of applications from children. A large amount of work is going on, but it would be impossible today to have a definitive number of all who will finally be eligible, because eligibility, along with freedom-of-movement rights, runs up to 31 December.

[Mr Goodwill]

Is it not also the case that there may be children claiming to be EEA citizens who may turn out to be, for example, from Albania, so publishing a figure based on what people claim would not be the true figure?

[Kevin Foster]

I thank my right hon. Friend for that intervention. Yes, there is always that possibility. For example, one of the reasons why we will not look to accept EEA identity cards in the long term at the border and internally for certain right-to-work checks is that some EEA identity cards are very prone to abuse, unlike secure passports. There are always going to be such claims, but certainly there is strong work going on. However, as we touched on, the core reason is that we cannot produce today a final list of who will be eligible, but we are working closely with local councils. Of course, each day children come into care, sadly, so again, snapshots do not reflect the work that needs to be done.

[Kate Green (Stretford and Urmston) (Lab)]

I do think that a running total—albeit one that would be changing from quarter to quarter—would give us a sense of the scale of the challenge, especially as we are now within six months of the end of the transition period and a year from the end of the extended period in which applications can be made. This point was raised, I think, a year ago in a debate in Westminster Hall when the Government first gave the undertaking to collect the data, and to do so through local authorities, which ought to give us a bit more confidence about its validity than if children or their families were simply providing it themselves. I say to the Minister that it would reassure Parliament if such information as is available were made public as soon as possible, although we understand that it is a bit of a moving feast.

[The Chair]

I remind hon. Members that interventions should be brief and to the point.

[Kevin Foster]

I have outlined the work that we are doing with local authorities to identify who is eligible. As the hon. Lady said, it is a moving feast, and we particularly want to make sure that those responsible for making these applications are aware of how to apply and who qualifies, and that they then proceed to do so.

I understand the concerns expressed by hon. Members about looked-after children and care leavers, and we must ensure that their corporate parents secure the best possible outcomes for them.

[Dehenna Davison (Bishop Auckland) (Con)]

Does the Minister agree that the best way that we can support looked-after children is by ensuring that they can take full advantage of the EU settlement scheme through local authorities, rather than having a two-tier system?

[Kevin Foster]

Absolutely. Once someone has their status under the European settlement scheme, they join another—why, we have had over 3 million decisions taken on granting status. That will be part of how our border system will operate in future. One of the lessons learned from the past is this—status was granted under an Act of Parliament, but then in several decades’ time it has to be explained to someone how their status was under a different approach from how status is granted to those who are in the same cohort, in terms of nationality and citizenship. That is not helpful to anyone. That is one of the lessons learned, of course, from the experience of the Windrush generation. That Act of Parliament was in 1971. The status was granted on 1 January 1973 and the issues then started to be encountered 30 years later, and not just since 2010— the first case mentioned on the front of Windrush lessons learned review is from 2009. Again, it is about how those issues are created.

A declaratory scheme as proposed in new clauses 41 and 58, under which those covered automatically acquire UK immigration status, would cause confusion and potential difficulties for these vulnerable young people in future years, with their having no solid evidence of their lawful status here. They will need evidence of their status when they come to seek employment, or access to benefits and services to which they are entitled. A declaratory system would leave them without that evidence, struggling to prove their rights and entitlements over decades to come.

I listened carefully to the comments made by the hon. Member for Kingston upon Hull North, in which she outlined the process local authorities could go through to list the children and send those lists to the Home Office. I thought, “If local authorities are going to go through all this, then the logical thing for them to do is make the applications that are required under the EU settlement scheme, and ensure the children they are listing have the status they need.” It is hard to see what the benefit to councils would be if we introduced a different process that did not produce a better outcome. If that is what we are going to ask people to do—arrange a working identifier—the next stage is to ask them to make quite a simple application to the European settlement scheme to get the status that child deserves.

[Stuart C. McDonald (Cumbernauld, Kilsyth and Kirkintilloch East) (SNP)]

The Minister must accept that a declaratory system does not leave people without a means of proving their status. They have every incentive to apply to the settlement scheme to get the document they need to access the services the Minister has referred to, and would have the facility to do so.

[Kevin Foster]

Again—here we go—this would mean that someone who had a status could not be distinguished from someone who did not have a status, and would then have to make an application. We have been clear that we cannot allow people to have a status without going through the process, but that we have some generous provisions in place. Similarly, physical documents that are decades old, that date from when someone is a child, are unlikely to be particularly convincing proof in many instances. That is why we need to move towards a digital system that is a permanent record, and if the children are being identified—as Opposition Members are suggesting—the next stage is to make that application, make it simple, and get their status secured. That means the children are then secure for the rest of their life, which is a better outcome.

Fundamentally, changing a system that is working well overall would have the exact opposite effect to that which the new clauses appear intended to achieve, leading to confusion and uncertainty. We have also made it clear that where a person eligible for status under the scheme has reasonable grounds for missing the deadline—for example, if their council did not apply to the EU settlement scheme on their behalf—they will be given a further opportunity to apply. We will ensure that individuals who have missed the deadline through no fault of their own can still obtain lawful status in the UK, which I suggest is a far better response to the concerns expressed by Opposition Members than the new clauses they are proposing. That is why the Government will not accept them.

[Dame Diana Johnson]

I am disappointed by the Minister’s response to new clause 41. It is also disappointing that the Minister is not able to update the Committee with some information, recognising that that information about numbers may be changing over time. This is a matter that will not go away, and rather than test the opinion of the Committee today, I may wish to return to it on Report. I therefore beg leave to withdraw the motion.

Clause, by leave, withdrawn.

New Clause 45

Immigration: no recourse to public funds

“Section 3(1)(c)(i) and (ii) of the Immigration Act 1971 cannot be applied to persons who have lost rights because of section (1) and Schedule 1 of this Act, until such time as may be specified in a resolution passed by each House of Parliament.”—(Stuart C. McDonald.)

This new clause seeks to delay application of No Recourse to Public Funds rules during the current pandemic and until such time as Parliament decides.

Brought up, and read the First time.

--- Later in debate ---

[Dame Diana Johnson]

It is a pleasure to serve under you this afternoon, Mr Stringer. I wish to speak to new clause 62, on the no recourse to public funds policy and to support new clause 59, tabled by my hon. Friends.

New clause 62 would exempt EU, EEA and Swiss nationals with dependants under the age of 18 from being subject to any NRPF condition that would otherwise be placed on them under the immigration rules. Many believe that these protections should apply to all families, regardless of their nationality, but for the purposes of the Government’s tightly drawn Bill, the new clause is limited in the way I have described.

Many find it astonishing that this condition is applied to children at all. Having NRPF means that the life chances of thousands of children are dictated by their parents’ inability to access support from the social security system because of their immigration status, even though the children themselves might be British.

I know that the Minister will use his concluding remarks to say that limiting access to public funds for these children and families is in the public interest and that they should be paying in to the system before they benefit from it. He will know that many of the families affected are those of key workers, who are at the frontline at this very moment in the fight against coronavirus. We are talking about NHS hospital cleaners, and about people who work in food preparation or social care, but they are being denied the same access to the safety net that they are working within. These families are paying income tax, council tax, immigration application fees and the health surcharge. It is calculated that if a family started their 10-year settlement journey in 2012, assuming they were not successful in getting fee waivers, and fees did not increase again, a single mum with two children would be expected to pay more than £23,000 for the family to settle in 10 years. A family of five—a couple with three children—would be expected to pay more than £39,000 to settle in the UK.

The NRPF does the opposite of making work pay, because families may end up forced into destitution if parents try to work but cannot access benefits. Working parents, single mums, mothers fleeing domestic violence, parents who have children born in the UK and children with British citizenship currently cannot access benefits to which they should be entitled. For children and families, that includes not being able to access benefits to support children’s upbringing and families’ wellbeing, to ensure that children have the same life chances as their peers.

As we have already heard, in May 2020, the Unity Project and Project 17 supported an eight-year-old British boy in taking the Government to court over the policy. The court ruled that the NRPF policy breached article 3 of the European convention on human rights, which prohibits inhumane and degrading treatment.

Applicants can apply to have their NRPF condition removed if they are likely to become destitute, but the process is time-consuming and requires specialist advice, which is difficult to obtain, especially during the current pandemic. NRPF families may be able to access support under section 17 of the Children Act 1989, which is often the only safety net available. That is payable, as we all know, through local authorities, but the pressure of austerity and cuts to local council budgets have left councils largely unable to offer much support.

Section 17 is often referred to by the Government as the basic safety net for migrant families with NRPF, but there is little support—sometimes as little as £3 per child per day—which makes it nearly impossible to meet the basic needs of a child, let alone support them to have a healthy, happy childhood. We have to acknowledge that that, again, puts an unnecessary strain on stretched local authority budgets.

Most, if not all, services that support migrant families with NRPF state that having no recourse to public funds increases the risk of families becoming trapped in a cycle of extreme poverty, vulnerability and abuse. Many children in NRPF families go without things that other children get to enjoy and that are important for their development, including, for example, days out as a family or school trips. One example that the Children’s Society gave me was of Hamid, who said that if his son’s classmates were going on a school trip, he would not take his son to school that day, because he did not want him to see his friends going while he stayed behind because they just could not afford it.

Other Government Departments are beginning to recognise the consequences of NRPF. The Department for Education has temporarily allowed children with NRPF to access free school meals, and the Ministry of Housing, Communities and Local Government has instructed local authorities to house homeless people with NRPF. In the longer term, the solution lies with the Home Office, so I ask the Minister to give an assurance to the Committee that safeguards will be put in place to ensure that more families will not be forced into destitution as a result of a condition placed on their leave to remain.

The Government have made it clear that they want to wrap their arms around everyone during this time of crisis. Vulnerable children are at the heart of the Government’s agenda, so the new clause will ensure that that can happen. I commend it to the Committee.

[Kevin Foster]

After the end of the transition period, EEA citizens coming to the UK will be subject to the same requirements as non-EEA citizens and the same conditions restricting access to public funds under our new global immigration system. The new clauses would maintain a system in which EEA citizens, including those arriving in future, continued to enjoy preferential treatment over non-EEA citizens in relation to their access to benefits. That is not the Government’s intention, nor would it be fair, and it is not something that the British people would support, given the mandate that they have given to the Government.

New clause 45 would delay the introduction of the no recourse to public funds condition to EEA citizens until Parliament had decided on the matter in the light of the current pandemic. However, as has been touched on by some Opposition Members, to their credit, the Government have already made provision to support people through the pandemic, including those subject to no recourse to public funds, and are keeping the situation under review.

It should also be noted that the no recourse to public funds condition does not bar access to all benefits, as pointed out by my right hon. Friend the Member for Scarborough and Whitby. People covered by it may still, for example, access contribution-based benefits and statutory sick pay. Exceptions are also made for vulnerable migrants, such as refugees and those granted humanitarian protection. Those granted leave on the basis of their family life under article 8 of the European convention on human rights can apply to have the conditions lifted if they would otherwise be destitute.

--- Later in debate ---

[Mr Goodwill]

Does my hon. Friend know whether any other EU countries have extended to UK citizens living in the European Union the type of benefits proposed by the new clauses?

[Kevin Foster]

It is probably worth saying that many European welfare schemes are based on slightly different premises—for example, social insurance schemes. As we reflected on when we talked about healthcare costs, people accessing healthcare services in other European countries may be required to pay for things that the NHS provides free at the point of need to UK nationals. It is hard to give different examples, but there are protections in the withdrawal agreement for UK citizens living in the EU before the end of the transition period. To be fair, many countries have been good in wanting proactively to support UK citizens living in their nation. I cannot give a list of each countries’ individual migration system off the top of my head, but it is probably safe to say that it is relatively common around the world for those who have newly arrived in a country to be unlikely to be able to access and qualify for a range of welfare provisions.

EEA citizens who apply under the EU settlement scheme secure their rights in UK law, so they can access benefits and services on at least the same basis as before they were granted that status. The Government have provided guidance for local authorities to enable them to support vulnerable EEA citizens in making an application under the scheme. The Government have also made available to local authorities and charities a further £8 million, in addition to the £9 million announced last year, to help them to assist vulnerable EEA citizens in making applications.

New clause 56 would risk impacting the Government’s ability to make regulations under the power in clause 4, the importance of which I have set out previously in Committee: to ensure that our laws operate coherently once free movement ends; to align the immigration treatment of newly arriving EEA citizens and non-EEA citizens from 1 January 2021; and to make relevant savings and transitional provisions for resident EEA citizens that cannot be made under powers in the 2020 Act.

New clause 59 would require the Government to publish a report on the impact of the no recourse to public funds condition on certain groups of EEA nationals. This is not necessary; the Government are already required to consider the impact of policies on all those to whom they apply, not just certain groups.

On new clause 62, I share the interest of the hon. Member for Kingston upon Hull North in ensuring the wellbeing of children, but I do not believe the new clause is necessary. Immigration law already provides that local authorities may intervene where required, regardless of the immigration status or nationality of the child or parent. The safeguards in place for the vulnerable will be retained, but it is only right that the future immigration system continues to play a part in ensuring that taxpayers’ funds are protected for the residents of the UK, whose money it is, and in assuring them that immigration continues to benefit the country as a whole and is not based on creating new costs and burdens for public resources.

I understand and appreciate the intentions behind new clause 62, but it would provide EEA citizens with greater access to benefits in the UK than they currently have under UK law. Generally speaking, under EU free movement law, EEA citizens may currently access benefits when they exercise a qualifying EU treaty right—for example, through employment or self-employment, or when they have become permanent residents. The new clause would remove that qualification and provide that any EEA citizen in this country with a child, for whatever period and in whatever capacity, may qualify for welfare benefits.

We believe that a general qualifying threshold of five years for access to benefits in immigration procedures is the right one, as it reflects the strength of a person’s connection to the United Kingdom and the principle that people should come to the UK to contribute, rather than to take advantage of, and place pressures on, taxpayer-funded services and welfare payments. Non-EEA migrants who come to live in the UK are currently expected to provide for any children they have without recourse to public funds. There can be no reasonable justification for adopting a different principle for EEA citizens arriving in the UK when the new immigration system is introduced, given that we have now left the European Union.

Finally, new clauses 59 and 62 incorrectly reference the immigration health surcharge. The immigration health surcharge is not a public fund. It is a contribution made by temporary migrants towards the costs of the NHS services they can access from day one. These new clauses would undermine the intention to establish a unified immigration system that builds public confidence in its operation, and therefore the Government cannot accept them.

[Stuart C. McDonald]

People do not come to this country to take advantage of the social security system; they come here to work or because they are family members of British citizens or settled persons. Having asked them to come to work or join family members here, I regard it as unfair that we do not extend the same social safety net to them. We are not arguing for a discriminatory system.

As the Minister knows, we are limited by the scope of the Bill. I feel that we have not got to the fundamental principle of why we can ask people to contribute on the one hand and yet not provide them with the same safety net. This is particularly urgent in relation to the coronavirus, and we need fast action. The Minister referred to this matter being under review, but we are several months into the crisis and we will have to revisit this issue on Report. In the meantime, I beg to ask leave to withdraw the clause.

Clause, by leave, withdrawn.

New Clause 46

Family reunion and resettlement

“(1) The Secretary of State must make provision to ensure that an unaccompanied child, spouse or vulnerable or dependant adult who has a family member who is legally present in the United Kingdom has the same rights to be reunited in the United Kingdom with that family member as they would have had under Commission Regulation (EU) No. 604/2013.

(2) The Secretary of State must, within a period of six months beginning with the day on which this Act is passed—

(a) make regulations amending the Immigration Rules in order to preserve the effect in the United Kingdom of Commission Regulation (EU) No. 604/2013 for the family reunion of unaccompanied minors, spouses and vulnerable or dependant adults; and

(b) lay before both Houses of Parliament a strategy for ensuring the continued opportunity for relocation to the UK of unaccompanied children present in the territory of the EEA, if it is in the child’s best interests.

(3) For the purposes of this section, “family member”—

(a) has the same meaning as in Article 2(g) of Commission Regulation (EU) No. 604/2013;

(b) also has the same meaning as “relative” as defined in Article 2(h) of Commission Regulation (EU) No. 604/2013;

(c) also includes the family members referred to in Article 16 (1) and 16 (2) of Commission Regulation (EU) No. 604/2013.

(4) Until such time as Regulations in subsection (2) come into force, the effect of Commission Regulation (EU) No 604/2013 for the family reunion of unaccompanied minors, spouses and vulnerable or dependent adults with their family members in the UK shall be preserved.”—(Stuart C. McDonald.)

This new clause would have the effect of continuing existing arrangements for unaccompanied asylum-seeking children, spouses and vulnerable adults to have access to family reunion with close relatives in the UK.

Brought up, and read the First time.

--- Later in debate ---

[Kevin Foster]

The Government are committed to the principle of family reunion and supporting vulnerable children. We recognise that families can become separated because of the nature of conflicts and persecution, and the speed and manner in which people are often forced to flee their country.

We will continue to provide safe and legal routes for families to reunite in the UK. We have a proud record of providing protection to those who need it, including children, and of reuniting families under the existing immigration rules. The new clause fails to take into account our negotiations with the EU, which I will come to later.

The UK continues to be one of the world’s leading refugee resettlement states. We resettle more refugees than any other country in Europe and are in the top five countries worldwide. Since September 2015, we have resettled more than 25,000 vulnerable refugees in need of protection through our refugee resettlement schemes, with around half being children. We can be proud as a country of our ambitious commitments and achievements. The Government are delighted that their overall approach was endorsed in the general election in December by the British public.

Furthermore, the UK already has a wide range of provisions in existing immigration rules that allow UK-based family members to sponsor children and other relatives to enter the UK for family reunion purposes. Those rules apply to a sponsor who is a refugee, a settled person or a British citizen. All those rules are unaffected by the UK leaving the EU and they will continue to be available after the transition period ends.

Our refugee family reunion policy is intended to allow those granted refugee status or humanitarian protection in the UK to sponsor pre-flight, immediate family members to join them here. Where appropriate, our policy includes scope to allow other family members to reunite with refugees in the UK. This may be on an exceptional basis or simply under a different route.

The new clause fails to distinguish between the very different circumstances of sponsors who are refugees and those who are asylum seekers—those seeking refugee status. It is important that the sponsor already has refugee or humanitarian leave in the UK before they are able to sponsor family members to join them. Allowing individuals to sponsor family members to join them in the UK before a decision on their asylum claim is made creates greater uncertainty for families, who may be unable to remain in the UK.

Very careful consideration is required before we extend family reunion provisions, to guard against significantly increasing the number of people who could qualify for family reunion, but who do not necessarily need protection themselves and who may be making unfounded claims of our protection systems for economic migration purposes. That could reduce our capacity to assist the most vulnerable refugees.

In the year ending March 2020, over 7,400 refugee family reunion visas were issued to partners and children of those previously granted asylum or humanitarian protection in the UK, which—hon. Members may be interested to know—is 37% more than in the previous year. There are further provisions in the immigration rules that allow those with refugee leave or humanitarian protection to sponsor adult dependant relatives living overseas to join them. This is where, as a result of age, illness or disability, a person requires long-term personal care, which can only be provided by their relative in the UK, without recourse to public funds. The same approach is applied to British citizens who wish to sponsor such relatives.

Furthermore, under part 8 of the immigration rules, children with relatives in the UK with refugee status or humanitarian protection are able to apply to join them in the UK, where there are serious and compelling family or other considerations that make exclusion of the child undesirable and where suitable arrangements have been made for the child’s care. In addition, appendix FM of the immigration rules already provides routes for British and settled sponsors, and those with protection-based leave, to sponsor family members to join them in the UK. We are aware that financial and other requirements are in place in those rules, which have been upheld as lawful by the Supreme Court. It is appropriate that all those who seek to sponsor a family member under these routes can meet a consistent set of requirements.

The new clause proposed by the hon. Member for Cumbernauld, Kilsyth and Kirkintilloch East is based on the Dublin regulation, which is an EU provision. The UK is no longer an EU member state. As a sovereign country, we already have our own routes for adults and families to be reunited in the UK, which are substantial, as I have just set out. As a sovereign state, it is important that we do not seek to recreate EU laws unilaterally, without considering what we want the UK’s migration and humanitarian protection system to look like. Importantly, we have been very clear that, while we are no longer in the EU, the UK and the EU have a long history of working together and we have recognised that it is in our best interests to continue to do so. That is why we are pursuing, through formal negotiations, new reciprocal arrangements with the EU for the family reunion of unaccompanied asylum-seeking children in either the UK or the EU with specified family members in the EU or the UK, where it is in the child’s best interests.

We published our draft legal text as a constructive contribution to the negotiations. A negotiated agreement for a state-to-state referral and transfer system would provide clear and consistent processes between the UK and EU member states, ensuring appropriate support for the child and guaranteeing reciprocity, yet these guarantees cannot be provided for in domestic UK provisions alone because they are inherently reciprocal. In addition, subsection (2)(a) of the new clause would require immigration rules to be made by regulations. That is not how immigration rules are made; they are made under the procedures set out in the Immigration Act 1971.

Finally, the new clause would require the Government to lay before Parliament a strategy on the relocation of unaccompanied children. The scope of this strategy is ambiguous. It is unclear whether it relates only to family reunion or whether it covers asylum-seeking children. The explanatory note accompanying the new clause suggests that it is solely about family reunion, but that is not reflected in the drafting. Therefore, for the reasons that I have outlined, the Government are not able to accept the new clause.

[Stuart C. McDonald]

I am grateful to the Minister for his response. I welcome the fact that the Government are committed to the principle of family unity. Indeed, the Minister was right to point out some of the good work that has been done in recent years, particularly in terms of resettlement. Currently, some of that tends to be forced upon the Home Office, rather than being designed and promoted within it, but nevertheless it is welcome and that has been a success.

In other senses, I fundamentally disagree with the Minister. He cited some rules that had been deemed lawful by the Supreme Court. That is not exactly a ringing endorsement, but, nevertheless, it is clear that some of the rules he was referring to and the financial requirements are absolutely impossible—so impossible that the rules are almost worthless.

The SNP wants the UK to go further on family unity. My hon. Friend the Member for Na h-Eileanan an Iar (Angus Brendan MacNeil) had the endorsement of Parliament to expand the family reunion rules and, of course, the Government managed to use the system to ignore that vote. Given what we have heard today and in previous weeks, including the publication of that text, I fear that we are in danger of going backwards, and not just in terms of Dublin. We urgently need to hear what the future of resettlement will be, so we will be watching carefully.

In the meantime, Mr Stringer, we will revisit this matter on Report. Meanwhile, I beg to ask leave to withdraw the clause.

Clause, by leave, withdrawn.

New Clause 51

Immigration Detention: Removal from Association

“(1) Section 153 of the Immigration and Asylum Act 1999 is amended as follows.

(2) After subsection (2) insert—

‘(3) Rules made under this section must prohibit the involuntary removal from association of any affected person detained in a removal centre save for where that is—

(i) reasonably necessary to protect that person or another person from immediate harm; and

(ii) for no longer than is necessary for this purpose and for no longer than maximum 24 hours.

(4) For the purposes of this section—

“affected person” means any person whose rights are affected by repeal of legislation by or under Schedule 1 of the Immigration and Social Security Co-ordination Act 2020 or by regulations made under section 4 of that Act.

“removal from association” means any restriction on a person associating with others that is not common to all persons then detained at the same removal centre.’” .—(Stuart C. McDonald.)

This new clause seeks to prohibit removal from association with others in detention save for removal where that is necessary.

Brought up, and read the First time.

[Stuart C. McDonald]

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

I had originally anticipated that this would be part of a much wider debate on immigration detention, but it looks like we will be having that on Report instead of in Committee. I am grateful to Medical Justice for flagging up the continued use of segregation in immigration removal centres, which we believe risks causing severe and permanent damage to detainees. In the past decade, at least two deaths in IRCs have been directly linked to the use of segregation. Segregation has played a role in four High Court cases in which a detainee’s detention or conditions of detention were found to amount to inhuman and degrading treatment in breach of article 3 of the European convention on human rights. Countless more detainees have suffered the negative impacts of segregation on their mental and physical health.

What we are really talking about is the practice of keeping a detainee separate from the rest of the IRC population. It is usually done by placing the detainee in a special unit at the centre, either alone or with other detainees being held under similar conditions. Segregated detainees can be locked in their cells for up to 23 hours a day, with severe restrictions placed on their activities and interactions with others.

In short, segregation is one of the most severe and draconian measures used in any detainment setting. Detainees can be held for an initial period of 24 hours, but that can be extended to seven days and 14 days with the authorisation of the Secretary of State. It can then be subsequently renewed, if required.

The effects of segregation on physical and mental health can be devastating. It has been found to lead to increased rates of anxiety, social withdrawal, hallucinations and suicidal thoughts. Even after relatively short periods of time, the damage done to a person’s health can be long-lasting and in some cases permanent. Research has shown that segregation can have a negative effect on the health of anyone who experiences it, and the risk for those with pre-existing mental health conditions or other vulnerabilities is particularly high. People who have been held in similar conditions in the past as part of torture, for example, may find the experience extremely re-traumatising.

The stated justification for the use of segregation in IRCs is the interests of safety and security or for refractory or violent detainees. However, a report from Medical Justice in 2015 showed that segregation is being used as a form of punishment and to house individuals with mental health issues that cannot be adequately managed in detention, including to manage detainees at risk of self-harm.

Inspection reports from independent monitoring boards and Her Majesty’s inspectorate of prisons continue to raise concerns about the use of segregation in IRCs. Examples of such practices include detainees inappropriately segregated for months and years, with one detainee being segregated more or less continuously for 22 months. Another detainee was only transferred to psychiatric hospital following 80 days in segregation, and yet another was segregated more than eight times during her 800 days in detention. The issues are ongoing. Segregation is not helping people, but is, on the contrary, making things much worse.

The key point is the availability of segregation, which perpetuates the inappropriate detention of those who often end up subject to it. It allows for problem individuals or vulnerable individuals who cannot be managed in detention to nevertheless still be detained. Despite their detention being inappropriate, the Home Office knows that there is always a possibility of placing them in segregation, should their condition deteriorate or their behaviour grow increasingly difficult to manage. Once these vulnerable detainees end up being segregated, they are housed in an environment that is totally unsuited to their needs. They are placed in forced isolation, removing them from the support of their peers, as well as limiting their visibility and access to organisations that could provide help.

If the use of segregation was not an option, proper attention would need to be paid to whether it was appropriate for the individual to be in detention at all, whether they can be managed safely in an IRC or whether an alternative approach should be sought with more appropriate support in the community. That is why the safeguards and protections in place under rule 40 and rule 42 can never be adequate. We need to abolish the practice altogether.

The new clause would still allow and make provision for crisis intervention where there is an imminent risk of harm to the individual or other individuals in the IRC, but that should be the purpose of those interventions, and that should be it. Too often, that intervention is being used and abused by the Home Office. People who belong either in police custody if they have breached the criminal law, or in a mental health institution should not be detained in IRCs in inappropriate conditions for days on end. I hope the Minister will address those points and seriously look at the issue I have flagged up, because the situation cannot be allowed to continue.

[Kevin Foster]

I thank the hon. Member for the opportunity to debate this topic. As he will be aware, in recent years the numbers in detention overall, excluding the current period, have been declining, but a process obviously still needs to be in place to manage the detentions, the detention centres and the detention estate, as we still have it.

--- Later in debate ---

[Stuart C. McDonald]

I am optimistically—and perhaps naively—attempting to spark a sensible, measured and constructive debate on laws relating to deportation, and the balance and interaction with family and private life. It is my fault, but I think the headings on the new clauses should probably be the other way around. The one relating to family is more closely linked to private life and vice versa.

Of course, there are people who commit serious crimes and have no connection with the UK, and they must be deported without any real hesitation. However, there are also many other cases where the impact of any such decision has such serious consequences—not just for the individual, but for the family member—that deportation is not appropriate in the minds of most reasonable people. Once a person has completed the punishment provided for by our criminal laws, they resume their life in this country.

There is also a second category of case, where to all intents and purposes the Home Office is not deporting foreign national offenders. In reality, it is deporting British people—people who have lived pretty much all their lives here and have no connection with the place to which they are being deported, other than the passports that they have never used or used only once when they were toddlers. From time to time, we need to be brave enough to confront the question of where we draw the line. I make the case that the line has been drawn in the wrong place, and that powers of deportation are now used too often and in inappropriate circumstances. That is a challenge to MPs on both sides of the House, because much of our deportation legislation has been in place under Labour Administrations as well as Conservative Administrations.

I turn first to new clause 53, where other family members are affected. As hon. Members will be aware, those from EEA countries and Swiss nationals and their family members cannot generally be deported, except on grounds of public policy, public security and public health, and where their conduct poses a genuine, present and sufficiently serious threat to one of the fundamental interests of our society—a forward-looking assessment that allows for consideration of competing family life considerations. By contrast, people from outside the EEA are subject to automatic deportation if sentenced to imprisonment of 12 months or more. No consideration is given to whether a person continues to pose a risk, and those sentenced to less than 12 months can also be deported if the Secretary of State believes it to be conducive to the public good.

Consideration of matters relating to family has been seriously restricted. There are only two very narrow circumstances in which issues of family will trump deportation. A person must show that they have either a genuine and subsisting relationship with a qualifying partner, or a genuine and subsisting parental relationship with a qualifying child, and they must show that the experience of deportation for the partner or child would be unduly harsh. The test is even higher where there has been a sentence of four years or more, but where very compelling circumstances must be shown.

The new clause concerns children, and we argue that the test set out just now is unduly restrictive and not in the best interests of children. Instead of requiring unduly harsh circumstances, the new clause would stop deportation where it would be unreasonable for a child to leave the UK or to remain in the UK without the parent. It is important to appreciate just how demanding the current test is. Home Office policy states that the words “unduly harsh” must be given their ordinary meanings. It notes that the Oxford English Dictionary defines “unduly” as “excessively”, and “harsh” as “severe” or “cruel”. In short, Parliament has put in place a regime that allows for child cruelty; only where that child cruelty becomes excessive do we think again.

It is little wonder that judges have sometimes expressed great sympathy with appellants and surprise at the effect of the legislation that this place has enacted, but their hands are tied. As Lord Justice Baker remarked in the case of KF Nigeria:

“For those lawyers, like my Lord and myself, who have spent many years practising in the family jurisdiction, this is not a comfortable interpretation to apply. But that is what Parliament has decided.”

Two tribunals had found that KF should not be deported because of the significant impact it would have on his son, despite a three-year sentence for burglary and robbery. Being a parent does not exempt someone from facing the criminal justice system if they break the law, but deportation goes further; it can effectively and summarily end a child’s family life for at least the duration of their childhood. There are well-documented long-term negative impacts on a child’s upbringing, education and social behaviour, with repercussions for their communities. There are also, of course, implications for a partner left behind in the United Kingdom, who is now responsible for bringing up the child alone.

I am not submitting that parents can never be deported; I am submitting that we need to be much more careful and sensitive about the circumstances in which it happens. This is not about people escaping justice, because they will still face the criminal justice system; it is about protecting innocent children. Deportations would still be possible, even where a child was involved, but only where a court assesses that it would be reasonable for the child to leave the UK along with the parent, or for the child to remain in the UK without the parent.

I turn to new clause 54, which challenges the Government on the criteria used to decide on the deportation of people who have significant connections with the United Kingdom. The issue was summarised by the former prisons and probation ombudsman, Stephen Shaw, in his 2018 review of treatment of vulnerable adults in immigration detention, which was commissioned by the then Home Secretary, the right hon. Member for Maidenhead (Mrs May). He reported that, time and again, those he met who were being held under immigration powers after serving custodial sentences were long-term British residents who had often been brought to the UK as young children and who were, to all intents and purposes, British.

To quote Stephen Shaw’s review:

“I find the policy of removing individuals brought up here from infancy to be deeply troubling. For low-risk offenders, it seems entirely disproportionate to tear them away from their lives, families and friends in the UK, and send them to countries where they may not speak the language or have any ties. For those who have committed serious crimes, there is also a further question of whether it is right to send high-risk offenders to another country when their offending follows an upbringing in the UK.”

It bears remembering that some of those individuals would have been entitled to British citizenship had they been aware, or not been priced out of it by the Home Office, to reference my earlier amendment on that subject.

I agree absolutely with Stephen Shaw, and I have personal experience of representing, very occasionally, clients who faced deportation. I remember in particular one Glaswegian lad—and he was Glaswegian—who was 18 years old and had been in this country since the age of four. He had been essentially abandoned, and passed from pillar to post around the care system. Persistent fairly low-level offending resulted in custody. In those circumstances, it was outrageous to deport him.

Some of the people on the charter flights to Jamaica in February 2020 were in that cohort, including young men whose offending involved belonging to county lines operations, which we all know are closely associated with coercion and modern-day slavery. Some were deported for offences committed a long time ago, with no account taken of rehabilitation.

A terrible example of that type of case is the ongoing saga of Osime Brown, a 21- year-old who is severely autistic. He arrived in the UK at the age of four from a country to which the Home Office now wants to deport him. I urge Members to have a look online at the facts and circumstances of the case and to say, hand on heart, that they have no problem with what the Home Office is up to.

The new clause changes the exceptions so that greater consideration is given to people established here at a young age and the reality that they are usually, to all intents and purposes, British, even if they do not hold that passport. It adds exceptions for people who were born in the UK, or who arrived in the UK under the age of 18 and have lived here for seven years or more. It also establishes a presumption that if a person was born in the UK, or arrived in the UK aged under 18 and has lived in the UK for a continuous period of seven years or more, they are considered socially and culturally integrated into the UK—albeit that that presumption would be rebuttable. The person would still have to show that there are very significant obstacles to reintegration.

The 33rd recommendation of Stephen Shaw’s review was:

“The Home Office should no longer routinely seek to remove those who were born in the UK or have been brought up here from an early age.”

Instead of commissioning reviews, it is time for the Government to start implementing the reviews that they have already heard from. For those reasons, I urge the Committee to look favourably on the new clauses.

[Kevin Foster]

The new clauses concern the principles that a court or tribunal is required to take into account when assessing what is in the public interest for the purposes of determining whether a foreign national offender’s deportation breaches article 8 of the European convention on human rights. The article 8 ECHR right to respect for private and family life is a qualified right, which can be circumcised—[Interruption.] I will have to ensure I write that one out again next time. It can be circumscribed where lawful, necessary and proportionate, in the interest of a number of factors including national security, public safety, the prevention of disorder or crime, and the protection of the rights and freedoms of others.

Section 117C of the Nationality, Immigration and Asylum Act 2002 provides that, when assessing whether deportation breaches article 8 of the ECHR, the deportation of a foreign national offender is in the public interest unless certain exceptions apply. The new clauses seek to alter those exceptions and therefore undermine Parliament’s clear position on what the public interest requires in such cases.

New clause 53 would amend the exception at section 117C regarding foreign national offenders who have been sentenced to less than four years’ imprisonment, and who have a genuine and subsisting relationship with a qualifying partner or child, meaning that deportation would not be in the public interest if it would be unreasonable for the child to leave the UK, or to remain in the UK without the foreign national offender. That would be in addition to the existing exception that applies when the effect of the deportation on the partner or child would be unduly harsh.

--- Later in debate ---

On late applications, the Minister has said that he will provide a list of the reasons that would allow for a late application still to be considered, but we all accept and appreciate that he will never be able to foresee every set of circumstances. However, if the same decision makers and procedures that oversaw the really bad calls made for the Windrush generation are in place, we simply cannot consent to any extension of the hostile environment to this cohort and we will support new clause 55.

[Kevin Foster]

I would like to start by reassuring Opposition Members. We are making plans for what will be a major restart of engagement and promotion of the European settlement scheme in a face-to-face way. Work is still being done online. The latest statistics have been published and we always use those as an opportunity to promote the scheme and make it clear to people what their entitlement is. We still have a good flow of applications coming in even during the lockdown, which partly reflects the fact that the vast majority of people are applying by using an app on their phones. So strong work is being done there.

On the list of reasons for late applications being accepted, as I said on Tuesday it will be a non-exhaustive list because, as the hon. Member for Halifax rightly says, we cannot predict every single circumstance that would be a reasonable reason for being late. A common reason would be a child in care where the council did not apply, but the list will be non-exhaustive because no one could write all the reasons that we as individuals might find reasonable. So far, the scheme has operated by being flexible and pragmatic in working with those applying. That is why the grants of status are in the millions and the refusals in the hundreds.

I am grateful to hon. Members for their contributions. I share their desire to ensure that EEA citizens and their family members who are currently in the UK lawfully are not denied access to work, healthcare or anything to which they are currently entitled.

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

Does the Minister share my frustration when Opposition Members talk about the hostile environment? It was in fact a former Labour Immigration Minister, the right hon. Member for Birmingham, Hodge Hill (Liam Byrne), who, in May 2007, introduced the new immigration regulations that created a hostile environment in this country.

[Kevin Foster]

I thank my hon. Friend for highlighting that point. Many of the enforcement mechanisms that we use originate from before 2010. There is a little amnesia among some of the people who were here and voted for them. It is right that there are protections in place around public welfare benefits and suchlike. That has not been particularly controversial for parties of all colours over the past 10 to 20 years. We need to consider carefully the lessons learned review. In the Wendy Williams report there is a 2009 case of someone who was unable to return to the United Kingdom, even though they had a status granted under the Immigration Act 1971 as someone who had been settled in the UK before 1 January 1973.

As with many of the amendments that we have debated, the new clause is at odds with our commitment to the British people to introduce a single global migration system. New clause 55 is unnecessary, unworkable, and risks being detrimental to the cohort in question. As we have been clear before, free movement is ending, and from 1 January 2021 EEA and non-EEA citizens will be treated equally. Under the new system, everyone will be required to obtain the correct immigration status, and we will clearly distinguish between those who are here lawfully and those who are not, regardless of their nationality. Allowing EEA citizens to rent accommodation or exempting them from other measures, even if they do not have lawful immigration status, would contradict the Government’s stated position. It would in practice result in different rules applying, depending on a person’s nationality. This would be inherently discriminatory, given that there would be no justifiable reason for them after the end of the transition period.

New clause 55 would also weaken the UK’s new points-based immigration system. The measures in question are designed to encourage individuals to comply with UK laws and rules, and they have all been approved by Parliament. In the future, once free movement has ended, it is right that these measures will apply on the basis of whether or not someone has lawful status, rather than on the basis of their nationality, although I appreciate that the wording would probably be done to bring this within the scope of the Bill.

EEA citizens are already subject to the universal eligibility checks carried out by employers, landlords and the NHS, as these checks apply to everyone regardless of nationality, including British citizens. I had to show my own passport recently, when renting a flat. Disapplying the measures for a certain group would increase the scope for illegal migration and place taxpayer-funded services at risk of abuse.

It is not clear how new clause 55 would actually work. To exempt an EEA citizen from an eligibility check, it would first be necessary to establish that they are part of the exempt cohort. It would not be possible for those carrying out the checks, including employers and landlords, to do this without checking everyone, as they do now, to establish eligibility. Alternatively, they would have to second-guess who was in a particular cohort, which brings the obvious risks of leading to potential discrimination and unfair treatment.

I recognise that the hon. Members for Cumbernauld, Kilsyth and Kirkintilloch East and for Halifax wish to ensure that EEA citizens and their family members who are currently resident in the UK are not adversely impacted by such measures. This is why we have set up the EU settlement scheme, making it free and easy to get UK immigration status and to enjoy the same rights as now. That is why I believe it would be unhelpful to accept the new clause, and the Government will not do so.

[Stuart C. McDonald]

I am grateful to the Minister for his response, but I feel he rather skirted around getting to the heart of the issue, and he knows full well that the new clause is as it is because of issues of scope. When he talked about how this would not work because there would have to be checks on whether an EU national was seeking to take advantage of this new clause, he spoke about the dangers of guessing whether an individual may or may not be an EU national. That is exactly the problem with the right to rent scheme at the moment, in that some landlords and landladies are guessing people’s nationality when they are approached with inquiries about accommodation. I am glad that he has recognised that there are dangers in the scheme that causes such judgments to be made. Yes, there are problems with the wording of the new clause because of scope, but I shall drop it for now and think about this again in advance of Report. I beg to ask leave to withdraw the motion.

Clause, by leave, withdrawn.

New Clause 57

Data protection

“(1) For the purpose of this section, a person (“P”) is defined as any person who, immediately before the commencement of Schedule 1, was—

(a) residing in the United Kingdom in accordance with the Immigration (European Economic Area) Regulations 2016;

(b) residing in the United Kingdom in accordance with a right conferred by or under any of the other instruments which is repealed by Schedule 1; or

(c) otherwise residing in the United Kingdom in accordance with any right derived from European Union law which continues, by virtue of section 4 of the EU Withdrawal Act 2018, to be recognised and available in domestic law after exit day.

(2) Regulations under section 4(1) may not be made until the Government has made provision to ensure that P has safe and confidential access to essential public services by ensuring the Secretary of State, or any other individual or body on his behalf, must not process personal data, by any means, for the purposes of immigration control or enforcement, where that personal data has been collected in the course of the data subject accessing or attempting to access the public services identified in subsection (3).

(3) For the purposes of subsection (2), the relevant public services are—

(a) primary and secondary healthcare services;

(b) primary and secondary education; and

(c) the reporting of a crime by P, where P is a witness to, or the victim of, the crime, any investigation or prosecution of it.

(4) The prohibitions contained in subsections (2) and (3) do not apply where the data subject has given his or her explicit and informed consent to the disclosure of the personal data, for the purposes of immigration enforcement.”—(Stuart C. McDonald.)

This new clause seeks to limit use of data gathered by key public services for immigration enforcement control or enforcement.

Brought up, and read the First time.

[Stuart C. McDonald]

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

I am pleased to speak to new clause 57, which brings us to another discrete example of the broader hostile environment and the ever-expanding powers of the Home Office to gather information and require information to be shared with it. The new clause requires that the Government take measures to prevent the sharing of data for immigration purposes where that data has been collected or provided in the course of a person accessing healthcare and education or reporting a crime.

The fear of information being shared with the Home Office can have a pernicious effect on people’s willingness to seek help or to access vital public services, and of course it can also lead to injustice, as we saw in the Windrush fiasco. This is about supporting the survivors of serious crimes—such as domestic abuse, human trafficking and other forms of exploitation—to report them to the police, seek healthcare and escape to safety.

Essentially, the new clause challenges us about our priorities. Is our priority to ensure that people can feel safe when reporting crimes, and that they do not have to be anxious when sending their children for education and do not have to be in two minds about seeking healthcare when that is required, or is our priority to provide the Home Office with endless additional powers to snoop and gather information on the off-chance that it might be able to detain and remove another few individuals, even if that comes at an incredibly hefty price, including injustices such as Windrush? I say absolutely clearly that my priority is protecting safe access to vital public services, and that is why I am moving new clause 57.

[Kevin Foster]

I thank the hon. Gentleman for his contribution. I do understand his concern that those who come to this country should have safe and confidential access to essential public services. However, new clause 57 would restrict the ability of the immigration authorities to use data that has been collected in particular circumstances for immigration enforcement purposes, as far as those who now benefit from freedom of movement are concerned. In so doing, it would maintain the status quo for those cohorts as far as the use of such data collection is concerned. However, the crucial difference is that they would now be subject to the same measures of immigration control as people from the rest of the world subject to the same restrictions.

The new clause would severely restrict the ability of the immigration authorities to take enforcement action against that cohort. It would thereby result in differential treatment in respect of a migrant whose data would be collected in the same way, but which would continue to be used for immigration enforcement purposes when deemed appropriate, as it is now. It would also weaken the effect of the immigration system, as we are concerned to encourage compliance with immigration laws as approved by Parliament. We welcome the contribution made to the United Kingdom by those who are lawfully present, but it must be in accordance with the laws and rules that have been set out and agreed. No cohort should be exempt from measures that are put in place to ensure compliance with those laws and rules.

On the prohibition on sharing data collected by the police in respect of witnesses or victims of crime, we believe that could lead to unintended consequences. It could prevent those with unresolved immigration status, particularly those who are vulnerable, from being brought into the immigration system, regularising their status and receiving necessary support. In some cases, such as where someone has been the victim of domestic abuse, it could prevent the Home Office from providing information to the police on known vulnerabilities or safeguarding concerns, thereby reducing a perpetrator’s ability to control or coerce their victim. Engagement with immigration enforcement could, for example, reveal previously undisclosed evidence of domestic abuse, which the Home Office could then pass on to the police, leading to the provision of support from a specialist domestic abuse team and potential access to a refuge. Data sharing in those circumstances would be proportionate and necessary, and in the best interests of the victim. Data sharing also enables the Home Office to trace missing families and protect children who may be at risk, working collaboratively with social services, the police and local authorities to ensure safeguarding actions are taken. We will always have due regard for the safety and best interests of any children.

The Home Office has robust safeguards and controls in place to ensure data are handled securely, lawfully, ethically and in accordance with relevant data protection regulations. It must have a legal basis for processing data, and comply with the General Data Protection Regulation and the Data Protection Act 2018 when doing so. Individuals’ rights are protected by the role of the Information Commissioner’s Office, the UK’s independent body which upholds information rights. I remind the Committee of the comments I made at one of the last Home Office oral questions that were held physically in the Chamber before the current arrangements. When asked, for example, about whether the details of those approaching the NHS for treatment for covid-19 would be passed on to immigration enforcement, we were clear that, purely for the purposes of immigration enforcement, that would not be something we would be doing. Our approach is proportionate.

[Stuart C. McDonald]

The purpose of the new clause, and what it says expressly, is that information cannot be shared with the Home Office for the purposes of immigration control or enforcement. To my mind, that does not mean, for example, stopping the police making inquiries with the Home Office about whether somebody has been the victim of domestic abuse. I therefore think that is a rather unfair interpretation of what we are proposing.

[Kevin Foster]

Part of how we respond to victims and others is sometimes to look to resolve their immigration status as well. I would say it is quite proportionate that two parts of the Home Office work together on the enforcement of the UK’s laws, subject to it being proportionate and appropriate to do so. I think people would find it strange if that did not occur.

For the reasons we have outlined, with the robust safeguards in place, and the proportionate and legitimate aim of ensuring our immigration laws are not completely undermined, the Government will not accept the new clause.

[Stuart C. McDonald]

I am grateful to the Minister for his response. I am not sure I agree with his reasoning on what the new clause would or would not allow, but I will take that away and give it further thought. In the meantime, I beg to ask leave to withdraw the motion.

Clause, by leave, withdrawn.

New Clause 60

Report on the status and social security entitlements of UK nationals in the EU member states

“(1) The Secretary of State must prepare and publish quarterly reports on the progress being made by EU member states on the migration status and social security entitlements of UK nationals in their countries.

(2) A Minister of the Crown must, not later than a month after the report has been laid before Parliament, make a motion in the House of Commons in relation to the report.”—(Kate Green.)

This new clause would require the Government to update the House of Commons on the progress being made by the EU27 countries on the implementation of protections for UK nationals in their countries on a quarterly basis.

Brought up, and read the First time.

--- Later in debate ---

[Kate Green]

Of course, Mr Stringer; that is very helpful guidance. These are matters on which I hope the Minister may be able to give some immediate answers about the Government’s current actions, but obviously the report to the House would be able to demonstrate the effect on UK nationals in the EU of our withdrawal from the European Union, which I think the public as a whole will be concerned about. As I go through further remarks about possible effects, I will naturally seek to come back to the point that I seek the approval of the Committee on regular reports on these matters being made to the House, including on the suggestion by British in Europe and the3million that they should be able to attend the specialist committee on citizens’ rights of the Withdrawal Agreement Joint Committee.

There are other uncertainties for UK nationals who are not covered by the withdrawal agreement. Jeremy Morgan of British in Europe agreed in our oral evidence session last week that UK nationals resident in the UK but who own second properties in the European Union will potentially now be caught by the 90 out of 180 days rule under the Schengen arrangements. It is not clear whether the UK Government have given up on negotiating up to 180-day stays for UK citizens visiting the European Union, so it would be useful to have regular reports to the House on whether negotiations are continuing, or on the impact if they are not.

The concerns I have outlined so far affect UK nationals who already live, work or own property in the European Union, but there will also be concerns about UK nationals moving to the EU in the future after the end of the transition period. In our evidence session on 9 June, Jeremy Morgan of British in Europe drew attention to whether UK nationals will be able to buy property in certain EU countries after the transition, which again I think would be of interest to the House and the wider public, and future reports on that would be welcome.

On Tuesday, we debated the implications of clause 5 and the draft social security arrangements published by the UK and the EU. I am grateful to the Minister for the letter he sent me late yesterday evening, which I think has been copied to all Committee members, in response to a number of issues I raised in that debate. The analogy drawn in the letter with other treaties between the UK and third countries simply exposes the more limited protection that those treaties provide, and that such treaties seem to be the model for our future arrangements with the European Union—for example, on aggregating contributions, sharing information or healthcare. If those are to be a model for future coverage for UK nationals in the EU, again I think that is something that should be drawn regularly to the attention of the House.

The draft social security agreement attached to the free trade agreement published in February makes it clear that the Government envisage that short-term visitors would be covered, but what of those who go to work or make their home in the EU in future? The Minister’s letter says that contributory employment and support allowance will be available for four weeks. I note in passing that a decreasing number of people get contributory ESA anyway, and that that four-week grace period will be of no use to disabled people moving abroad, or even visiting for five, six or seven weeks. I think the House would like to be aware of the implications of new arrangements for disabled people.

Similarly, on healthcare, the Minister’s letter may try to gloss over this, but for those who are not going to be covered by the withdrawal agreement, the S2 will be scrapped, so they cannot in future go abroad and have treatment paid for in the EU, even if the NHS cannot provide that treatment. Importantly, we will lose the mutual recognition of prescriptions, which could have quite significant consequences for some UK nationals.

My assessment is that, for those UK nationals moving to the European Union after the transition, the unspoken thrust of the letter sent by the Minister last night is a levelling down of protections and rights, which I feel the House should want to track on a regular basis. I recognise that a number of bilateral reciprocal arrangements—some going back many years—between the UK and certain member states may fill in some of the gaps in social security co-ordination arrangements in the future, but it is unclear whether either country will regard them as remaining effective. In any event, many of the arrangements offer only very limited protection. Again, I think it would be useful for the House to be updated on the standing of, and application of, these bilateral agreements.

If no agreement is secured with the European Union and the Minister hopes that instead a series of new bilateral arrangements might be negotiated between the UK and each individual member state, there may be a fear in those member states that that could impinge on the co-ordination arrangements that apply in relation to other member states, and that fall within the scope of European Union co-ordination regulations. It would be useful for the House to have regular updates on that.

The picture that I have painted suggests at best confusion, and at worst the prospect of less favourable protections for UK citizens in the European Union—those already there, and those who move to European Union countries in future. The UK Government have an obligation to look after the welfare of their citizens wherever they are located. Quarterly reporting to Parliament will make it possible to conduct scrutiny of the way in which the Government meet the obligation.

[Kevin Foster]

I thank the hon. Member for Stretford and Urmston for moving new clause 60, which is well intentioned but ultimately unnecessary. The Government are monitoring closely the implementation of the withdrawal agreement for UK nationals in the EU and information on citizens’ rights in each EU member state is already provided by the Government on our “Living in” guides on gov.uk.

Having ratified the withdrawal agreement and legislated for it domestically in the EU (Withdrawal Agreement) Act 2020 in January, the Government are now closely monitoring the progress of member state implementation during the transition period, via our network of embassies, high commissions and consulates across Europe. We are committed to providing UK nationals overseas with clear and appropriate information and are working with member states to ensure that any introduction of, or changes to, administrative procedures that are in line with the withdrawal agreement will be communicated to resident UK nationals.

The EU’s social security co-ordination rules will continue to apply in full to individuals in full scope of the withdrawal agreement, including UK nationals living and/or working in the EU, and EEA citizens living and/or working in the UK by the end of the transition period. Those rights are protected for as long as they remain in full scope of the withdrawal agreement.

Information is available via our “Living in” guides on gov.uk, and UK nationals should sign up for the latest information on the actions they need to take. The “Living in Europe” guide, which is also on gov.uk, provides further information on citizens’ rights to UK nationals in the EU.

Beyond that, we also have a governance structure established by the withdrawal agreement to monitor the correct implementation and application of the withdrawal agreement. The Withdrawal Agreement Joint Committee, chaired by my right hon. Friend the Chancellor of the Duchy of Lancaster, has already met twice, on 30 March and 12 June.

The Specialised Committee on Citizens’ Rights, co-chaired by UK and EU officials, met on 20 May. As set out in the joint statement following the meeting, both the UK and the EU exchanged updates on the implementation of the citizens’ rights part of the withdrawal agreement and discussed preparatory work for future meetings. The Government and European Commission share the objective of ensuring the correct and timely implementation of the withdrawal agreement to provide certainty to UK nationals in the EU and EU citizens in the UK. The Committee will therefore meet regularly during the transition period and thereafter.

Finally, I reassure the Committee that we are calling on the European Commission and all member states to ensure timely implementation and clear communications to UK nationals in the EU, in line with what has been agreed in the withdrawal agreement.

I will briefly cover some of the points that the hon. Member for Stretford and Urmston made. The Government are continuing their negotiations with a view to a future partnership. We have already looked to extend our generous visitor visa provisions to EEA nationals from 1 January, on the same basis as we have to many of our traditional international friends and allies, such as Canada, the United States and Japan. We continue in discussions to seek a productive partnership. However, I am sure that the hon. Lady will appreciate that it is not possible for us, in domestic UK immigration measures, to legislate for what other nations should offer the United Kingdom.

On that basis, I ask the hon. Lady to withdraw her new clause.

[Kate Green]

I feel that the Minister’s response has rather missed some of the points that I was trying to make. In seeking a report to Parliament, I am asking for something a little bit different from information to UK nationals about what they should be doing at any given time, whether or not they moved to the EU before or after the end of transition. Intergovernmental discussions—or discussions between the UK Government and the European Union—taking place in the joint committee are very important, but they are not a parliamentary event that ensures full public information and scrutiny of those discussions. My point on the bilateral treaties was also about thinking of protections for UK nationals, which, if I may say so, are in the gift of the UK Government. The signs are worrying when looking at the Government’s draft agreement, published earlier this year.

I will not press the new clause to a vote, but I gently suggest to the Minister that keeping the House updated on such matters is not only important to hon. Members, but of considerable importance to our constituents. We have found at times that Ministers are quite tardy in coming to the House to inform us about the progress of negotiations with the European Union, at least in relation to these important matters. I hope that the Minister will use his good offices to encourage his colleagues to keep us as well informed as possible. I beg to ask leave to withdraw the motion.

New clause, by leave, withdrawn.

Question proposed, That the Chair do report the Bill to the House.

[Kevin Foster]

On a point of order, Mr Stringer. I thought it appropriate to thank you and Sir Edward for your very effective chairmanships and for keeping us all in order—even me, with the interesting slip that I managed to make earlier today. I hope that it did not cause too much hilarity in the Committee.

[Holly Lynch]

Oh, it did!

[Kevin Foster]

I am sure it did. I should also thank the shadow Minister and the SNP spokesperson for the spirit in which we have debated the Bill, put on the record a number of important points and explored a number of issues of concern to a range of constituents. I am sure that hon. Members would want me to express gratitude to the Clerk, who has ensured that the Committee was conducted professionally and well. I also thank my officials at the Home Office and those at the Department for Work and Pensions who have supported me both by preparing for the Committee and by preparing briefings on a range of amendments.

I can imagine how you will rule on this point of order, Mr Stringer—probably in line with every other point of order that has ever been raised in the five years that I have been here—but I wanted to put those few comments on the record as we come to our conclusion.

[Holly Lynch]

On a point of order, Mr Stinger. I echo the Minister’s sentiments—I am grateful for the points that he just made. I thank my Committee colleagues, not least the hon. Member for Stretford and Urmston—I am eternally grateful for her support on a personal basis; her experience in this subject area is second to none—the hon. Members for Kingston upon Hull North and Coventry North West, and our Whip, the hon. Member for Ogmore, for their support. I also thank you, Mr Stringer.

I echo the Minister’s sentiments: the Clerk has been incredibly helpful to Members across the Committee and her efforts have been nothing short of herculean, often responding to emails in the early hours of the morning. We are eternally grateful to her for that. I also put on the record my thanks to my staff members, Jamie Welham and Charlotte Butterick, as well as to Heather Staff in the office of my hon. Friend the Member for Stretford and Urmston.

Putting politics and the subject matter to one side, we can always collectively breathe a sigh of relief when the intensity and pace of any Bill Committee comes to an end. I very much look forward to returning to some of these issues on Report and Third Reading.

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

Kevin Foster Excerpts

Report stage & Report stage: House of Commons
Tuesday 30th June 2020 Commons Chamber

[Jim Shannon (Strangford) (DUP)]

Like many others, I have been inundated with briefings and questions regarding the Bill, and I understand the importance of us all getting things right today, if possible. We certainly must, at all costs, protect our social care sector.

I was very happy to add my name, along with my hon. Friend the Member for Belfast East (Gavin Robinson), to new clauses 3 to 10, in the name of the right hon. Member for Haltemprice and Howden (Mr Davis). I hope that he presses these amendments to a Division and that the Government perhaps will accept them, even at this late stage. I feel strongly about the time limit on immigration detention. New clause 3 would hopefully change that to protect people by having a period of 28 days. The other proposals relating to bail hearings, the criteria and duration are also important, and it is so important that we get this right.

I have seen the existing pressure on the social care workforce in my constituency, and one thing is certain from their side: there is not the staff or structure to carry all that is required. The social care workforce will need to expand to deliver the Government’s laudable commitments. It is important to note that the number of staff needs not only to rise to reduce the over 120,000 vacancies that currently exist, but to increase considerably over a sustained period to meet the Prime Minister’s pledge to give every older person the dignity and security that they deserve. The current system leaves a large number of vulnerable people going without any help.

Research by the Nuffield Trust indicates that providing just one hour per day to older people with higher needs who currently get no help would require approximately 50,000 additional home care workers in England alone, never mind Northern Ireland, Scotland and Wales, and providing two hours per day would require 90,000 extra workers.

Although it can be argued that the economic impact of covid-19 will pull in more domestic workers, it is far from clear that that will create the permanent step change needed to deal with the loss of migration, fill the vacancies and grow the workforce all at once. In her new clause 29, the right hon. Member for Normanton, Pontefract and Castleford (Yvette Cooper) has put forward a solution, and I hope that there is a cross-section of people in the House who will pursue that.

Analysis of the data by the Nuffield Trust shows that, from 2009-10 to 2018-19, almost half—46%—of the expansion in the social care workforce across the UK was accounted for by people born outside the United Kingdom. That is a case for why we need an immigration system that enables those people to come in and help our social care system. In regions with the greatest projected future need for social care, such as London, not only has the proportion of EU staff increased over time, but migrant staff now make up a large proportion of staff, with more than two in five care workers from abroad.

I remind the Minister very gently and respectfully that countries such as Australia and Canada have long employed points-based immigration systems and have introduced a range of special migration programmes out of necessity, including to help the long-term development of the domestic workforce. New Zealand has an agreement with the residential care sector under which it may offer more generous visa terms, such as longer stays, for a range of key jobs, including personal care assistants and care workers. In exchange, employers develop plans to boost the domestic workforce.

Having seen vulnerable people struggling to care for themselves, and yet knowing the difficulties of securing an adequate care package, I welcome this opportunity to speak on this matter. I hope that the Government listen to Members’ pleas in relation to the new clauses that have been tabled. They were tabled for the right reason—to do what is right today.

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

It is always a pleasure to follow the hon. Member for Strangford (Jim Shannon). It is a pleasure I have had on many occasions since joining the House. Overall, this has been a good debate on a wide range of issues relating to immigration. Members will appreciate that, in view of the time remaining, I will be unable to respond in detail to every new clause and amendment. However, I would like to address some of the more prominent issues that were raised during the debate.

I know that Members were restricted by the narrow scope of the Bill, but I would like to put on the record that most of the new clauses and amendments, if implemented, would lead to a discriminatory immigration system with differential treatment between EEA and non-EEA citizens, which cannot be justified and is not in line with the Government’s approach of having a single global migration system in the future. However, I accept that the reason for the wording of the amendments was to get them in scope.

I turn to the 31 Government amendments in relation to social security co-ordination, which is dealt with by clause 5. As social security co-ordination is transferred in respect of Northern Ireland and partially devolved to Scotland, clause 5, as currently drafted, confers powers on a Scottish Minister or a Northern Ireland Department to legislate in areas of devolved competence. As is required, we sought legislative consent from the Scottish Parliament and the Northern Ireland Assembly. Social security is reserved in Wales.

The relevant Northern Ireland Minister has indicated that a recommendation will be put to the Executive to bring forward a legislative consent motion in the Assembly; however, the Scottish Government confirmed on 19 June that they would not recommend legislative consent. The Government amendments therefore amend clause 5 and schedules 2 and 3 to restrict the powers in the Bill in relation to Scotland so that the clause does not now engage the legislative consent process in the Scottish Parliament. I therefore hope that Members will be prepared to agree to the amendments.

Turning to one of the more substantive issues raised, the hon. Member for Argyll and Bute (Brendan O'Hara) started the debate around new clause 1. I recognise that Members across the House care deeply about the health and social care sector. I am pleased to again place on the record the Government’s thanks and recognition of the fantastic job that those working in health and social care do for the whole of our United Kingdom.

--- Later in debate ---

[Mr Steve Baker]

I have been listening to the Minister very carefully, and I repeat my earlier praise: he has a tough job to do. I do recognise that this Bill relates to the withdrawal agreement, and I can tell him that I will abstain on the amendments I have signed, and I shall vote with the Government on the rest of them.

[Kevin Foster]

I very much welcome my hon. Friend’s comments. Certainly, the Government look forward to working with him and my right hon. Friend the Member for Haltemprice and Howden, because this is an area where we want to see better outcomes for everyone—a better outcome for those who end up in the immigration system, and a better outcome for the taxpayer and the public as well.

Moving on to new clause 2, I welcome the opportunity to speak about the important issue of how we best protect the rights of vulnerable children in care and care leavers. Since the full launch of the EU settlement scheme in March last year, we have had agreements and plans in place with local authorities to ensure that relevant children and care leavers receive the support they need in securing their UK immigration status under the scheme. Local authorities and, in Northern Ireland, health and social care trusts are responsible for making an application under the EU settlement scheme on behalf of an eligible looked-after child for whom they have parental responsibility by way of a court order. Their responsibility in other cases to signpost the scheme and support applications has also been agreed.

The Home Office has implemented a range of support services to ensure local authorities and health and social care trusts can access help and advice when they need it. This has involved engaging extensively with relevant stakeholders such as the Department for Education, the Local Government Association, the Ministry of Justice, the Association of Directors of Children’s Services and equivalents in the devolved Administrations. Guidance has been issued to local authorities regarding their role and their responsibilities for making or supporting applications under the scheme.

The Home Office will be conducting a further survey of local authorities across the UK shortly, as part of the support we are offering to them with this important work. This survey will ask local authorities to provide the assurance that they have so far identified all relevant cases. We will share relevant data from the survey with the EU settlement scheme vulnerability user group, comprising experts from the local authority and voluntary sectors, to help it to discuss progress in this important area and to focus our efforts in supporting local authorities with this work.

To be clear, new clause 2 does not facilitate applications to the EU settlement scheme but proposes a declaratory system under which those covered automatically acquire UK immigration status. This would cause confusion and potential difficulties for these vulnerable young people in future years, with their having no evidence of their lawful status here. They will need evidence of their status when they come to seek employment or access the benefits and services that they are actually entitled to access. This is not something we can allow to happen. However, to reassure hon. Members, the withdrawal agreements oblige us to accept late applications indefinitely where there are reasonable grounds for missing the deadline. This and other rights under the agreements now have direct effect in UK law via the European Union (Withdrawal Agreement) Act 2020, so this commitment is already effectively enshrined in primary legislation.

We have therefore repeatedly made it clear that where a person eligible for status under this scheme has reasonable grounds for missing the deadline, they will be given a further opportunity to apply—to give a specific example, where a parent, guardian or local authority does not apply on behalf of a child. This will ensure that individuals who missed the deadline through no fault of their own can still obtain lawful status in the United Kingdom. I am happy to underline this commitment at the Dispatch Box where children in care and care leavers are concerned, and this is not just for a five-year period, as suggested in this new clause.

Some Members have spoken about the Government’s “no recourse to public funds” policy during the covid-19 pandemic, and there are some new clauses relating to this. Let us make it clear that a range of safeguards are in place to ensure that vulnerable migrants who are destitute or at imminent risk of destitution and have community care needs, including issues relating to human rights or the wellbeing of children, can receive support.

We recognise and are immensely grateful for the contributions made by so many migrants, especially during the recent pandemic. We have provided more than £3.2 billion of additional funding in England and further funding in the devolved Administrations to support local authorities to deliver their services, including helping the most vulnerable. We have also made it more straightforward for those here on the basis of family life or human rights to apply to have the “no recourse to public funds” condition lifted, with change of condition decisions being prioritised and dealt with compassionately.

It is worth noting that those with no recourse to public funds have also been able to benefit from the coronavirus job retention scheme, the self-employed income support scheme and other measures introduced by the Government, such as protections for renters and mortgage holidays.

[Stephen Timms]

Will the Minister give way?

[Kevin Foster]

I will not be able to; I just do not have the time.

Moving to new clause 29, I have listened carefully, and I assure all Members that the Government are committed to the principle of family reunion and supporting vulnerable children, as set out in a letter I sent to all Members of Parliament this morning. We recognise that families can become separated because of the nature of conflict and persecution and the speed and manner in which people are often forced to flee their country. However, new clause 29 does not recognise the current routes available for reuniting families or the negotiations we are pursuing with the EU on new reciprocal arrangements for the family reunion of unaccompanied asylum-seeking children in either the UK or the EU, as set out in the draft legal text.

[Yvette Cooper]

Will the Minister give way?

[Kevin Foster]

I am afraid I do not have the time. A negotiated agreement for a state-to-state referral and transfer system would provide clear and consistent processes between the UK and EU member states, ensuring appropriate support for the child and guaranteeing reciprocity. The new clause seeks guarantees that cannot be provided for in UK domestic provisions alone.

The current immigration rules also include routes for family members wishing to enter or remain in the UK on the basis of their relationship with a family member who is a British citizen or settled in the UK, as well as those who are post-flight family of a person granted protection in the UK. Those routes will remain in place at the end of the transition period.

The new clauses on the devolution of migration policy are another unsurprising attempt by the Scottish nationalists to fulfil their ambition of setting up a passport control point at Gretna to fulfil an agenda of separation. We are delivering an immigration system that takes into account the needs of the whole of the United Kingdom and that works for the whole of the United Kingdom, and we will not put an economic migration border through our country. As Members who have spoken pointed out, serious discussion needs to be had about how Scotland can attract more people to live there, work there and be a vital part of the community, and many of those issues are absolutely in the hands of the Scottish Government to address.

Finally and very briefly, we had reference to comprehensive sickness insurance. To be clear, the rules have not changed in terms of the EEA regulations. The insurance would not block someone getting through the EU settlement scheme and we would be happy to hear any such examples. With that, I have explained why the Government does not accept the new clauses.

[Brendan O'Hara]

Very briefly, I thank all Members who have contributed to the debate. I thank Robert McGeachy of Camphill Scotland on a personal level for all the help he has given me, and I thank the Minister for replying to the debate, although I am very disappointed he has refused to accept new clause 1. It is beyond me why a Government would refuse an opportunity to say to the health and social care sector and its users that they understand the concerns, they have a plan, they know what they are doing and they would welcome transparency.

New clause 1 gives the Government the opportunity to make up for not having done a proper impact assessment and not having put in place any mechanism whatever for this House and other Parliaments across these islands to be able to assess and measure the effectiveness or otherwise of the Bill. For that reason, I will test the will of the House this evening and press new clause 1 to a Division.

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

Kevin Foster Excerpts

Consideration of Lords amendments & Ping Pong & Ping Pong: House of Commons
Monday 19th October 2020 Commons Chamber

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

I beg to move, That this House disagrees with Lords amendment 1.

[Madam Deputy Speaker]

With this it will be convenient to discuss the following:

Lords amendment 2, and Government motion to disagree.

Lords amendment 3, and amendment (a) thereto, and Government motion to disagree with Lords amendment 3.

Lords amendment 4, and Government motion to disagree.

Lords amendment 5, and Government motion to disagree.

Lords amendment 6, and Government motion to disagree.

Lords amendment 7, and Government motion to disagree.

Lords amendment 8, and Government motion to disagree.

Lords amendment 9, and Government motion to disagree.

Lords amendment 10, and Government motion to disagree.

Lords amendment 11.

I am sure colleagues will see that a large number of Members wish to contribute to this debate. We have had two quite lengthy statements, so there is pressure on time. That means we will be imposing an initial six-minute limit on speeches from Back Benchers. I hope that Front Benchers will keep their remarks as brief as possible in the circumstances to allow others to contribute.

[Kevin Foster]

This Bill delivers on a key manifesto commitment to end the EU’s rules on free movement, and to deliver our fairer and firmer points-based immigration system. I am pleased the Bill has passed its Third Reading in the other place, led by my colleague Baroness Williams of Trafford. For such a short Bill, there has been substantial debate on a wide range of immigration issues. There are issues on which Members disagree with the Government, but we must now enact this Bill and deliver on our promise to the British people. I will speak to each amendment in turn.

Lords amendment 1 requires publication of an independent report on the impact of ending free movement on the social care sector. Although it is well intentioned, the amendment is unnecessary because we already have independent reporting in this area through Skills for Care and the Migration Advisory Committee, which is now free to work to its own commissions in addition to those given to it by the Government.

The Department of Health and Social Care funds Skills for Care to deliver a wide range of activities to support the Government’s priorities for the social care sector. This includes programmes to support employers and the workforce with skills development, promote and support recruitment into the sector, and support leadership development. The Department of Health and Social Care uses the data produced by Skills for Care and the trends identified to inform its policy development to support the adult social care sector to recruit, train and develop its vital workforce.

[Sir Edward Leigh (Gainsborough) (Con)]

The social care sector is a typical example of where cheap EU labour has been brought in to undercut our own labour force. The public are really worried that, as EU migration has declined, so migration from other parts of the world has increased. I want the Minister to give a categorical assurance that, whatever happens with these negotiations, we will get a grip on migration from other parts of the world and we will not undercut our own workforce.

[Kevin Foster]

We have been very clear that we will have a points-based system that will respond to the needs of the United Kingdom’s labour market and workforce, and that our migration system will not provide an alternative to investing in and rewarding those who work in critical sectors such as social care.

As Members will know, I have previously spoken at length about the role of the Migration Advisory Committee, which now has an expanded remit to examine any aspect of the immigration system and to provide annual reports that Parliament can, and almost certainly will, debate. I have also outlined the Government’s continued commitment to keeping all policies, including the skilled worker route, under review. We do have the flexibility to adapt and adjust on the basis of experience and evidence. Hon. Members will have heard me say before that the immigration system cannot be the solution to issues in the social care sector. We must not continue to rely on people coming to the UK when the focus should be on the domestic workforce to address shortages in the sector. As was just touched on, migration policy should not be an alternative for employers to offering the type of rewarding packages that care staff deserve.

To deliver change to the social care sector, we need to make changes to the way that we train, recruit, attract and retain staff. The Government are focused on working alongside the sector, including through Skills for Care, to ensure that the workforce can meet the increasing demands and continue to deliver quality, compassionate care. Immigration must be part of our overall strategy for this sector’s workforce, not a handy alternative for employers to—

[Yvette Cooper (Normanton, Pontefract and Castleford) (Lab)]

The Migration Advisory Committee has effectively recommended a significant increase in the pay of social care staff, which they urgently need—and they have been under immense pressure this year. Will the Minister accept that recommendation from the Migration Advisory Committee?

--- Later in debate ---

[Kevin Foster]

The right hon. Member will have seen the recommendations of the Migration Advisory Committee, and I know that my colleagues in the Department of Health and Social Care will consider them closely. I certainly hope that if she is keen on the MAC, she will support the Government’s position on the amendment in the Lobby later.

[John Redwood (Wokingham) (Con)]

Does the Minister accept that paying people from the local labour force better, and paying for their training, is a much cheaper solution than building lots of houses to invite migrants in, and a much more popular one?

[Kevin Foster]

My right hon. Friend points out that in a time when we have large numbers of people affected by the current economic situation, we need to focus on our own UK-based workforce when it comes to filling needs.

[Nadia Whittome (Nottingham East) (Lab)]

Will the Minister give way?

[Kevin Foster]

I am conscious that I need to make progress.

Lords amendment 2 seeks to continue certain family reunion arrangements provided by EU law—the so-called Surinder Singh route. It would require us to provide lifetime rights for British citizens resident in the European economic area or Switzerland by the end of the transition period to return to the UK accompanied or joined by their non-British close family members on current EU free movement law terms. In effect, that means that these rights would continue perpetually. Family members of British citizens resident in the EEA or Switzerland at the end of the transition period are not protected by the withdrawal agreement in terms of returning to the UK. However, we have made transition arrangements for them. British citizens living in the EEA or Switzerland will have until 29 March 2022 to bring their existing close family members—a spouse, civil partner, unmarried partner in a long-term relationship, child or dependent parent—to the UK on EU law terms. The family relationship must have existed before the UK left the EU on 31 January 2020 and continue to exist. Those family members will also then be eligible to apply to remain in the UK under the EU settlement scheme. Now that we have left the EU, we have to be fair to other British citizens, whether they are living overseas or in the UK, and to UK taxpayers who can be called on to pay the costs when family life is not established sustainably in the UK. In the long run, the same rules should apply to all, not continue indefinitely to give preferential treatment to those relying on past free movement rights that have been abolished. This is what a global immigration system means. However, I respect the points that my right hon. Friend the Member for North Thanet (Sir Roger Gale) has made to me, and, as with other things, we will continue to keep this area under review.

Lords amendment 3 provides for children in care and care leavers who lose their free movement rights to obtain indefinite leave to remain. I pay tribute to the noble Lord Dubs, who sponsored this amendment in the other place. The Government agree on the importance of protecting the rights of children in care and care leavers, and other vulnerable groups, as we end free movement. I have also appreciated the points made in a letter I replied to from my hon. Friend the Member for East Worthing and Shoreham (Tim Loughton). We are providing extensive support to local authorities, which have the statutory responsibilities for this cohort, to ensure that these children and young people, like other vulnerable groups, get UK immigration status under the EU settlement scheme. This support includes the settlement resolution centre and grant funding of up to £17 million, to cover last year and this year, to organisations across the UK to support all vulnerable groups in applying to the scheme.

A survey of local authorities by the Home Office has so far identified fewer than 4,000 children in care and care leavers eligible for the EU settlement scheme, with over 40% of those having already applied for status under it, and with most of those who have applied having already received an outcome of settled status. The Government have made it clear, in line with the withdrawal agreement, that where a person eligible for status under the EU settlement scheme has reasonable grounds for missing the 30 June 2021 deadline, they will be given a further opportunity to apply. We have also made clear that those reasonable grounds will include where a parent, guardian or local authority does not apply on behalf of a child. Therefore, if a child in care or a care leaver misses the deadline, they will still be able to obtain lawful status in the UK. There is no time limit to what may be reasonable, so an application today from a person who is a child aged eight would be reasonable if they discovered at age 18 that their local council had not applied for them.

The Government are not, therefore, persuaded of the need for this amendment. Applicants under the age of 21 are already granted immediate settled status under the EU settlement scheme where a parent has that status. The idea of applying such a provision retrospectively runs counter to the general operation of the immigration rules.

[Matt Rodda (Reading East) (Lab)]

Will the Minister give way?

[Kevin Foster]

I have to make progress.

I will now turn briefly to Lords amendment 4, which relates to family reunion and unaccompanied asylum-seeking children. I understand the important issues that this amendment seeks to address, and confirm the Government’s commitment to the principle of family unity and supporting vulnerable children. The Secretary of State for the Home Department, my right hon. Friend the Member for Witham (Priti Patel), recently announced at the Conservative party conference our intention to reform our broken asylum system to make it firm but fair, and we intend to bring forward legislation next year to deliver on that intention. Our reformed system will be fair and compassionate towards those who need our help by welcoming people through safe and legal routes; it will, though, be firm in stopping the abuse of the system by those who misuse it— especially serious or persistent criminals—simply to prevent their removal from this country.

We have a proud record of providing safety to those who need it through our asylum system and resettlement schemes, and we have granted protection and other leave to more than 44,000 children seeking protection since 2010. The UK continues to be one of the highest recipients of asylum claims from unaccompanied children across Europe, receiving more claims than any EU member state in 2019 and 20% of all claims made in the EU. However, now we have left the European Union, it does not make sense in the long term to have a different set of provisions for those in fundamentally safe and democratic countries than for those in the rest of the world, unless those provisions are based on effective reciprocal agreements relating to returns and family reunification. We have made a credible and serious offer to the EU on new arrangements for the family reunion of unaccompanied asylum-seeking children, and it remains our goal to negotiate such an arrangement, but the UK does provide safe and legal routes for people to join family members in the UK through existing immigration rules, all of which are unaffected by our exit from the European Union, such as the provisions under part 11 of the immigration rules.

Lords amendment 5 would require the Secretary of State to offer a physical document free of charge to any EEA citizen who applies for leave or has been granted leave under the EU settlement scheme. As announced earlier, this amendment engages financial privilege, so I will not debate it specifically, but I will point out that the House has considered that proposal on a number of occasions, and has declined it each time. We have made such a move across our migration system: in particular, we are looking at the British national overseas visa route, which will also use an electronic system. Again, that is similar to other countries: for example, Australia has had such a system since 2015.

[Dr Julian Lewis (New Forest East) (Ind)]

Will the Minister give way?

[Kevin Foster]

I am going to have to start making some progress.

Lords amendments 6, 7 and 8 relate to detention time limits—an issue that is not directly relevant to the purpose of the Bill, which is to end free movement. In addition, at the heart of the Bill is a commitment to a global system and equal treatment of immigrants of all nationalities as we exit the transition period. On the broader point, imposing a 28-day time limit on detention is not practical and would encourage and reward abuse, especially of our protection routes. No European country has adopted anything close to a time limit as short as that proposed in these amendments, and comparable nations have not gone down this route at all.

However, I recognise the point made by those who are concerned about this issue. As I said when we discussed a very similar amendment tabled on Report, we want to reform the system so that it makes a quicker set of decisions, and for our position to be clear that detention is used when there is no alternative, or when there is a specific need to protect the public from harm.

[Mr Andrew Mitchell (Sutton Coldfield) (Con)]

My hon. Friend will be aware that many of us across the House are concerned about the fact that there is not a limit. He is absolutely right that what is required is an international convention and international agreement on this issue. Nevertheless, for some people to be detained indefinitely having committed no crime is a matter of concern, and I would like my hon. Friend’s commitment that he will keep this matter under review within the Home Office.

[Kevin Foster]

I thank my right hon. Friend for his constructive intervention. We will absolutely keep it under review. I gently say that it is not possible to detain someone indefinitely as such; they can apply for immigration bail, and we have to meet a test that says there is a reasonable prospect of their removal. My right hon. Friend will appreciate that, similarly, there are instances where it is out of the Home Office’s hands, or even this jurisdiction’s hands, and we cannot immediately remove someone by a particular day.

[Mr Alistair Carmichael (Orkney and Shetland) (LD)]

Will the Minister give way?

[Kevin Foster]

Very briefly, because I am conscious of the number of Members waiting to speak.

[Mr Carmichael]

Last year, the Government had to pay out £7 million to 272 people who were wrongfully detained. Was that good value for money?

[Kevin Foster]

I can reassure the hon. Gentleman that the law on detention is very similar to that pre-2015, when he was in the Cabinet. Immigration detention is part of our rules, but we have been reducing its use over recent years; again, it should be a last resort when other methods cannot be used. However, I say again with regret that introducing a 28-day limit would allow people to exploit the system and would actually run contrary to our ability to run an effective system.

I turn to Lords amendment 9. I appreciated the chance today and over the weekend to have significant conversations on this subject with my right hon. Friends the Members for Maidenhead (Mrs May) and for Staffordshire Moorlands (Karen Bradley), who have had a strong passion and commitment to this area over a long period. Lords amendment 9 would require arrangements to be made in the immigration rules for the granting of leave to remain to confirmed victims of modern slavery who are EEA citizens, in specified circumstances. We believe that the amendment is unnecessary, for reasons that I will briefly set out.

Currently, confirmed victims of modern slavery who are foreign nationals from non-EEA countries and who do not already have immigration status are automatically considered for a grant of discretionary leave to remain. By “automatically” I mean they do not have to apply for it. Our national referral mechanism arranges for that consideration if, after a decision has been reached, there are conclusive grounds to believe that someone is a victim of modern slavery. EEA citizens are not automatically considered in that way, as many are likely to be exercising free movement rights and therefore do not require a grant of discretionary leave under UK immigration rules. They may, however, apply for discretionary leave if they wish.

However, to address some of the points that have been made, following the end of free movement, EEA confirmed victims who do not already have permission to stay in the UK, for example though our EU settlement scheme, will be treated in the same way as other foreign national victims and therefore receive automatic consideration for a grant of discretionary leave. The published policy will be amended to make that clear beyond 1 January 2021; the recent publication reflects the guidance that needs to be followed today, with free movement rights still in place.

[Sir Iain Duncan Smith (Chingford and Woodford Green) (Con)]

My hon. Friend knows that I spoke overnight to the Home Secretary and we agreed that this was an anomaly and needed to be sorted, so I am pleased that he now commits to doing it. Will he also, however, commit to having a full and proper set of discussions with Lord McColl, me and others about the possibility of introducing modern slavery victims support legislation to iron out many of these anomalies?

[Kevin Foster]

I thank my right hon. Friend for his constructive intervention. Yes, certainly; I am more than happy to engage with him about how we can look at this process. He will realise that it is not just in this area where there has traditionally been a difference, because EEA nationals have freedom of movement rights, so it would be odd to grant them status under immigration rules, but I am certainly happy to have that conversation. I also reassure Members that we would consider someone’s being held as a modern slave as reasonable grounds for a late application to the EU settlement scheme. I say gently that it would be unhelpful to have two very similar sets of criteria, one under the immigration rules and one under policy, so we do not accept Lords amendment 9.

Having been through the more contentious areas, I hope that Members support Lords amendment 11, which was introduced in reaction to feedback in the other place. I hope that Members accept the reasons I have outlined why the Government cannot accept the Lords amendments that we ask the House to disagree with, but I hope that they have a sense of the Government’s commitment to the issues raised.

[Bambos Charalambous (Enfield, Southgate) (Lab)]

It is a pleasure to be at the Dispatch Box for the return of this incredibly important piece of legislation. I thank peers in the other place for their detailed work on the Bill. We welcome the amendments that have been secured, most of them with significant majorities; several of the improvements before us today demonstrate cross-party support.

Lords amendment 1 would require the Secretary of State to commission and publish an independent assessment of the impact of ending free movement on the social care sector. The Government’s intransigence on this matter has been beyond disappointing. This Bill has been an affront to those migrant workers working on the frontline in social care. To have clapped them on a Thursday night and then told them that they are unskilled and therefore not welcome on a Monday is both disrespectful and shameful.

Members on both sides of the House have witnessed the vulnerabilities across our health and social care sector, which, despite the best efforts of its dedicated workforce, has been pushed to the limits over the course of the pandemic. Unison, the UK’s largest trade union, represents our dedicated public sector workers, including social care workers, across the UK. We have worked closely with Unison, which has supported and represented workers throughout the pandemic. With its in-depth knowledge of the sector and foresight, it has articulated its vision of social care in its “care after covid” campaign to address the fault lines that were so exposed throughout the last six months. To propose a Bill that will make radical changes to the recruitment of social care workers without considering the impact is simply negligent and careless governance.

The Minister referred to the Migration Advisory Committee; in its recent report, commissioned at the request of the Home Secretary, it expressed concerns about the social care sector and argued that if necessary funding and pay increases do not materialise urgently, it would expect the end of freedom of movement to increase the pressure on the social care sector. That would be particularly difficult to understand at a time when so many care occupations are central to the covid-19 pandemic frontline response.

These remarks should unsettle the Government and spur them into action, and I fully expect that if the Government do not listen, on the day that the new points-based immigration system is implemented we will still be deeply entrenched in the battle against coronavirus. If we do not do our due diligence by adopting this amendment, the Bill is set to undermine social care recklessly at a time when we can least afford it, so we urge the Government to reconsider their position, commission the impact assessment and understand the impact of the Bill on the social care workforce, on visas and on the consequences for recruitment, training and staff terms and conditions.

Amendment 4 would ensure there are safe refugee family reunion routes after Dublin III ceases to be available in the UK following the end of the UK-EU transition period. I want to place on record my thanks to the brilliant and inspirational Lord Dubs for his tireless work and leadership on this amendment in the other place.

A great deal has been said about immigration over the summer and we on the Labour Benches want in the strongest possible terms to distance ourselves from the Home Secretary’s dangerous rhetoric and to thank those lawyers who play such an important role in ensuring that the UK is upholding its international and legal obligations. The amendment demonstrates the future for one of the safe and legal routes we have all advocated for over the summer.

The Dublin III regulation is for family reunion and represents legal routes to safety from Europe for children seeking to come to the UK. Family reunion under Dublin III is currently the only legal pathway to reach the UK from the EU for the purposes of claiming asylum. It will no longer apply after the transition period. If we do not seek to address this issue, I fear that we will see more images of people making precarious and life-threatening journeys on dinghies across the channel.

The Government will say that they have a draft proposal for family reunion; however, it is apparent that their proposal is woefully inadequate. The proposals remove all mandatory requirements to activate family reunions. They remove the child’s right to appeal against refusal, and some children would not be covered by the narrower definition of family which Parliament passed in a 2017 Act.

Other safeguards have been removed, too, such as deadlines. According to one non-governmental organisation, 95% of people helped by NGOs to obtain a right of passage would fail the test proposed by the Government. Existing immigration rules also fail to cover this specific area, and therefore this amendment gives Parliament a chance to enshrine in law the basic principle of family reunion.

This issue is incredibly salient and our thoughts are still fixed on the suffering and horrors caused by the fire at the Moria refugee camp in Lesbos. The scale of that tragedy could have been minimised.

We all heard the pleas before the incident to the Greek Government for help with numbers at the camp, yet the calls were ignored by the people in power.

It is worth noting that the number of people who have come in under Dublin III has historically been very small. Up to 2014, there were 10 or 11 a year, and since 2016, a little over 500 have come in under it. We hear about the Government’s proposed fairer borders Bill on asylum, but those children cannot wait. We are asking the House to use its power to give transformative opportunities to innocent children who, through no fault of their own, have found themselves fleeing persecution and destitution.

--- Later in debate ---

[David Simmonds]

Like my hon. Friend the Member for West Bromwich West (Shaun Bailey), I am very much of the view that the Bill has the purpose of replacing the arrangements we had in the European Union. I will not be supporting the amendments this evening, because I feel very much that the issues highlighted are principally about matters of management and administration of the process, rather than operation of law. That said, I hope those on the Government Front Bench are paying close attention to what has been said across the House this evening about a number of particular points. The two I would especially like to draw attention to are: the circumstances of undocumented children in the care system, and the point about documentary evidence in the hands of those who are applying for settled status.

I thank my hon. Friend the Minister for his time and attention to the first issue relating to undocumented children. However, we heard Members across the House emphasise the vulnerability of those in the care system to finding themselves at risk of a future Windrush situation because of the retroactive nature of some elements of the applications for settled status. While it is welcome that the Home Office accepts that people will be able to apply in effect out of time—that is a positive thing—it does not address the fundamental problem that a local authority with care responsibilities, or indeed a family member with a special guardianship order for a young person, would face if they do not have the necessary documentation proving that young person’s nationality in obtaining settled status for them in the United Kingdom. Although I think we recognise that that group is a relatively small group, it is vital that their needs are addressed to ensure that we do not, in 10 or 15 years’ time, find ourselves regretting that we did not take more action on that tonight.

Another point which arises from that of course is the one raised by my hon. Friend the Member for East Worthing and Shoreham (Tim Loughton), which is the significant cost of this. Local authorities paying that cost to the Home Office is simply a cost shunt from one taxpayer to another taxpayer, and I would urge the Home Office to give consideration to ensuring that, for children in care, those costs are either waived or substantially reduced to remove a final barrier.

I will finish on this point, time being tight. A number of Members have raised the issue of documentary evidence in the hands of the citizen. We have seen many examples in all different walks of life where we would have legitimate concerns about whether the digital record keeping, of all kinds of organisations and for all kinds of reasons, is sufficiently accurate. We all hear, as Members of this House, from our constituents about the issues that that causes them in their day-to-day life. For people who may be refugees, who may be facing a degree of digital exclusion or for whom English is not a first language, that is an even greater problem. I am reassured by the message from the Home Office that everybody who makes an application will receive a written response, with a number on it, that provides evidence of the status that has been granted, but I think it would be useful for all of us to hear a bit more in due course from the Home Office about how it proposes to ensure that that is something people appreciate the value of, and that it is kept and preserved so that the evidence is there for the future.

The UK has much to be proud of in the way that we respond to immigration. It is right that we keep this tight to the matters under consideration, but I trust that colleagues have heard the concerns across the House and that the Minister will address them in his summing up.

[Kevin Foster]

This has been an interesting and fascinating debate, which has mostly been reflective and reasonable. I hope colleagues will appreciate though that, in the seven and a half minutes I have, I will not be able to respond to every single point that has been raised.

I will start with the themes, and we have again had a lengthy debate on social care. I was pleased to hear the SNP spokesperson, the hon. Member for Cumbernauld, Kilsyth and Kirkintilloch East (Stuart C. McDonald), say he agreed with the MAC. He will recall the evidence that Brian Bell gave to the Public Bill Committee that considered this Bill, and I am glad to hear that he now agrees with that. I would say, however, that we are being clear again that the MAC has been free to make its own reviews and commissions, and to produce an annual report that can then be considered by this House. It will be able to do that independently, and it will almost certainly provide commentary on social care. To set up a body that is independent and free to make its own decisions, and then tell it all the reviews it needs to do does not make a great deal of sense. Similarly, we are keen that it is there, and it can be lobbied, including by the shadow Minister, the hon. Member for Enfield, Southgate (Bambos Charalambous), about areas that it may wish to consider of importance. As we keep on saying, if the lesson people have taken from the last few months is that the solution to social care is to give employers an unlimited opportunity to recruit at the minimum wage, they have really taken the wrong lesson.

Moving on to the issues of modern slavery, we have again had some impassioned speeches and some very well-informed ones, particularly from my right hon. Friends the Members for Staffordshire Moorlands (Karen Bradley) and for Chingford and Woodford Green (Sir Iain Duncan Smith). Again, I would say that we have obviously made the changes to guidance. We will bring forward those changes to guidance and have them in place on 1 January. He will appreciate why we will not do it before then, because people will still have free movement rights and we should respect that. But certainly we are happy to engage more widely around the position on what we can do and where we can ensure that the support these victims need is available to them, particularly as we remove the distinction between EEA victims who have free movement rights and non-EEA victims who do not, subject to the caveat that we will of course always look to see if a victim of modern slavery is eligible for the European settlement scheme.

Turning to the issues of family reunion and resettlement, I again point out that there are provisions under the UK’s migration rules that, certainly under part 8, go wider than purely affecting parents with children. We are in negotiations with the European Union, and the Under-Secretary, my hon. Friend the Member for Croydon South (Chris Philp), is actively looking at what we can do. If we can get bilateral arrangements, then fantastic, but does it make sense in future to have a different set of rules for people in EEA countries versus those in the rest of the world? That is the core of this Bill, which is about free movement rights. If there is an agreement—a reciprocal arrangement—in place, then that would go beyond what we have as our baseline rules. Now that we have left the European Union, with the transition period and free movement coming to an end, whatever settlement we have in future—there is a debate to be had in this House about our asylum system, and we will have it at more length in the near future—it does not make sense to have a distinction between someone whose position is in the EEA and someone whose position is, for example, in Turkey, unless there are reciprocal arrangements that justify that difference of treatment.

The issue of children in care has rightly been a subject of some debate. I hear the point that has just been made about identification. Let me be clear: EUSS does not require a passport or an ID card; alternative measures can be used to prove entitlement through documentation. However, that issue is not particularly caused by EUSS because today you would need the same challenge to identify whether someone is a UK national, an EEA national or a rest-of-the-world national, given the impact that that has on free movement rights. However, we are happy to continue working with local authorities to see how we can help them to tackle these issues, and to work with high commissions to ensure that those who deserve their status receive it.

As we have said, there is a range of provisions around late applications and those who should make an application but do not. This is not just about children in care. We also include those under 18. If a parent does not make an application, and, at a later time, the child reaches the age of majority and they have to do a compliant environment check, for example, and discover that it has not been made, we would see that as a reasonable ground for a late application. As touched on, there is no specific time limit to that provision.

On detention, we have outlined our arguments. I am conscious that there are strong feelings on this in the House. We all want to see people swiftly moved out of detention and, if they have no right to be in this country, to be removed from it. We want detention to be used as a last resort. Its use has been declining over the past few years. That is partly because we cannot guarantee that a country in sub-Saharan Africa, for example, will issue us with travel documents for the person to be returned to it within the timeframe. In particular, we have to be clear that there is no ability to put someone in detention for no reason. We have to have a lawful basis for doing so, and that can only be where there is a reasonable prospect of removal or a threat to the public—although I accept that only a very small number of people are serious foreign national offenders.

On physical documentation, we are moving towards more digital statuses. For example, we are looking to see where we can use public services to automatically check status. In recent months, we have seen the advantage of EU citizens who already have EUSS—although they are not yet required to have it—being able to share that online and digitally when doing a range of checks, at a time when a face-to-face meeting to do so may be a lot less desirable. As touched on, it will not just be EEA nationals with status under EUSS who will be using digital status—we also intend the route for British nationals overseas, who will also be moving to digital. As touched on, countries such as Australia have had a system like this in place for some time. It was interesting to hear the hon. Member for Bath (Wera Hobhouse) talk about the idea of digital passports. We are starting to look to the future where people may well travel on their biometrics and with digital identities rather than travelling purely on passports—although that is probably a few years away given that it would require technology being reciprocated in other nations.

I particularly enjoyed some of the speeches. My hon. Friend the Member for Newcastle-under-Lyme (Aaron Bell) hit the nail on the head: this Bill is about delivering a manifesto commitment. This Bill is about ending free movement, as voted for in the general election and in the referendum back in 2016. It is not there to have the whole range of debate around immigration, but I respect the fact that people took the chance to do that. This Bill is about delivering a manifesto commitment, and that is why we should remove these amendments, which do not go to that core goal.

[Mr Deputy Speaker (Mr Nigel Evans)]

Order. Before I put the Question, I would like to say that I am expecting some Divisions this evening, and there is a distinction between “should” and “must”. When I say “should”, it is guidance; when I say “must”, you must do it. If there is a Division, those sitting on the Front Benches must leave by the door in front of me; everybody else must leave by the door behind me. It is not optional. Please keep social distancing throughout; if you can touch the person in front of you, you are standing too close.

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

Kevin Foster Excerpts

Consideration of Lords amendments
Wednesday 4th November 2020 Commons Chamber

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

I beg to move, That this House disagrees with Lords amendment 4B.

[Mr Speaker]

With this it will be convenient to consider Government amendments (a) to (c) in lieu of Lords amendment 4B.

[Kevin Foster]

Lords amendment 4B relates to family reunion and unaccompanied asylum-seeking children. I am sure that hon. Members will have in mind the tragic events in the channel last week. Let me reiterate very firmly that the Government are determined to end these dangerous, illegal and unnecessary crossings to ensure that lives are not lost and that ruthless criminal gangs no longer profit from this criminal activity.

As my right hon. Friend the Home Secretary recently announced at the Conservative party conference, we intend to reform our broken asylum system to make it firm but fair. We intend to bring forward legislation next year to deliver this, allowing for a wider debate on the subject. Our reformed system will be fair and compassionate towards those who need our help by welcoming people through safe and legal routes. It will also be firm and stand up for the law-abiding majority by stopping the abuse of the system by those who raise no founded claims through protected routes but do so purely to frustrate the implementation of our immigration law and procedure.

Let me reassure hon. Members that the Government remain committed to the principle of family unity and to supporting vulnerable children. We have a very proud record of providing safety to those who need it through our asylum system and world-leading resettlement schemes, and we are determined that that continues. We have granted protection and other leave to more than 44,000 children seeking protection since 2010. The UK continues to be one of the highest recipients of asylum claims from unaccompanied children across Europe, receiving more claims than any EU member state in 2019, and 20% of all claims made in the EU are in the UK.

The Government understand the importance of this issue, and it is right that we continue to debate it. Lords amendment 4B is well-intentioned in seeking to ensure that adequate protection is in place for vulnerable asylum-seeking children. However, we have made a credible and serious offer to the EU on new arrangements for the family reunion of unaccompanied asylum-seeking children. It remains our goal to negotiate such an agreement. As my noble Friend Baroness Williams announced in the other place on 21 October, in the event of no negotiated outcome, we will pursue bilateral negotiations on post-transition migration issues with mutual interest countries, including on family reunion for unaccompanied asylum-seeking children. Government policy has not changed on this matter.

However, it is worth noting that the UK already provides safe and legal routes for people to join family members in the UK through our existing immigration rules, all of which are unaffected by our exit from the EU, as they apply globally. In the year ending June 2020, the Government issued 6,320 refugee family reunion visas and have issued more than 29,000 in the last five years. This shows that our existing refugee family reunion routes are working well, and these routes will continue to apply, including to people in the EU, after the transition period. Our resettlement schemes were the largest in Europe over the last five years, directly resettling more than 25,000 people from regions of conflict and instability, half of whom were children. During the debate in the other place on 21 October, the Government committed, as part of this vital work, to conduct a review of safe and legal routes into the UK, including those for unaccompanied asylum-seeking children in EU member states to reunite with family members here in the United Kingdom.

The substantive amendment that the Government have tabled in lieu, amendment (a), makes important statutory commitments, demonstrating the Government’s assurances to review legal routes to the UK for people seeking protection in EU member states or seeking to come to the UK to make a protection claim, including for unaccompanied asylum-seeking children to join their family members here in the United Kingdom; to publicly consult on legal routes for unaccompanied asylum-seeking children in the EU seeking to join family members in the UK; to lay a statement before Parliament providing further details of that review and public consultation within three months of the Bill receiving Royal Assent; and to prepare a report on the outcome of the review, publish it and lay it before Parliament. Amendments (b) and (c) concern commencement of the commitment in amendment (a) to lay a statement before Parliament and specify that it will come into force within three months of Royal Assent.

I trust Members will agree that amendment (a) in lieu is substantial and clearly demonstrates how seriously this Government take the issue of family unity for vulnerable children. It is important that we consider these routes, to discourage vulnerable children from making the dangerous and illegal journeys that can result in the kind of tragedy we saw last week. Due to the scope of the Bill, amendment (a) refers only to legal routes for those who have made an application for international protection in an EU member state or are seeking to come to the UK from a member state to claim protection here. However, I can confirm that the review we conduct will be concerned with legal routes from all countries, not just EU member states. That is in line with our new global approach to the future immigration system and ensures that there is no advantage to making a dangerous journey across the Mediterranean, often organised by criminal trafficking gangs. Those granted permission under these routes can instead travel safely—via scheduled air services, for example—to the United Kingdom.

[Mr Alistair Carmichael (Orkney and Shetland) (LD)]

The Minister tells us that the system is working well and that it would be dangerous to change it, and for that reason, the Government are not going to change it. What purpose is served by a consultation in those circumstances?

[Kevin Foster]

We are happy to look at a proper review of the rules. Our current rules apply alongside Dublin for those who are within the EU. We think it is appropriate to take stock, as we are doing with the rest of our migration system, as our arrangements fundamentally change with the European Union. We are happy to make the commitment to review them for the future; that is part of the general stock-take we are doing. It is not unreasonable to highlight our record on resettlement and this country’s commitments and the actions it has taken, compared with the commentary we sometimes hear. I am sorry to hear that the right hon. Member does not see a review of the rules as the way forward, but I am sure that he and his colleagues will look to proactively and positively engage with the discussion that this amendment and the review will engender.

It is now essential that the Bill receives Royal Assent without further delay if key elements of the Government’s future border and immigration system, including the new skilled workers routes as well as social security co-ordination, are to be implemented as planned. Further delay would put at risk the ending of free movement at the end of the transition period, which means the UK would effectively continue to have free movement, but unreciprocated by the European Union, into 2021. We cannot accept a delay to that key manifesto commitment. I therefore hope that, for all the reasons I have outlined today, the House will now support our amendments (a), (b) and (c) in lieu, and the statutory commitments they contain, and disagree with the Lords in their amendment 4B.

[Holly Lynch (Halifax) (Lab)]

I want to start by thanking the Minister for taking the time earlier this week to explain the Government’s amendments in lieu, and for writing to me and others today with further details. Although we do not have a problem with the Government’s amendments—on the contrary, we welcome the opportunity to review all the safe and legal routes available to those fleeing war, torture or persecution and who have grounds to seek asylum in the UK—the review offered still falls a long way short of the commitment that we have asked for in Lords amendment 4B.

The review is a welcome addition to the Bill, but the fact that it is to be introduced through an amendment in lieu of ours makes it feel somewhat hollow by comparison. The Minister will be aware that support for our amendment in the only slightly varying drafts in the other place, spearheaded so ably by Lord Dubs, has resulted in two significant Government defeats, and efforts in the Commons have consistently had support from Members on his own Back Benches. I want to thank them for their work on this, not least the hon. Member for East Worthing and Shoreham (Tim Loughton). He and my right hon. Friend the Member for Normanton, Pontefract and Castleford (Yvette Cooper), through their work on the Home Affairs Committee, have championed the merits of continuing the routes for unaccompanied child refugees.

We ask the Minister one more time to reflect on why adopting the Dubs amendment in its entirely is not just critical but time-critical. We debate the amendment today with 56 days to go until the Dublin regulations end, and with them the lifeline they offer, and we fall back on the immigration rules. We also debate the merits of our amendment, as the Minister has already said, in the shadow of such tragedy in the English channel this year. The sinking of just one of those insecure boats just last week resulted in the loss of life of four people, two of them children who were just six and nine. A further 15 people were taken to hospital, and three more are missing, presumed dead, including the 15-month-old baby of the Iranian Kurd family who died. It is a truly harrowing reminder that people are making more and more desperate decisions as this Government’s squeeze on safe and legal routes continues. It demonstrates that the morally bankrupt traffickers, who allow children and adults alike to get into their dangerous boats and set off to sea in bad weather, will continue to exploit people in the worst possible ways unless we reopen and continue those safe and legal alternatives, family reunion being one of them.

The deliberations and ping-pong between the two Houses on the matter of family reunion or the question of accepting unaccompanied child refugees should not be politically contentious. We are a decent and humanitarian country that takes seriously the requirement, enshrined in international law, to consider asylum claims and offer refuge to those fleeing persecution and destitution, and the Minister has rightly spoken of our country’s proud record on that.

When the House previously considered Lords amendments to the Bill, the Government rejected Lords amendment 4—the earlier version of this amendment—citing financial privilege, as is so often the parliamentary way. I am inclined to agree with Lord Dubs when he said:

“Given the time we spent on the issue and its importance, to say that the technicality of financial privilege is sufficient to dispose of it…falls short of being humanitarian”.—[Official Report, House of Lords, 21 October 2020; Vol. 806, c. 1595.]

I heard the Minister’s contribution and read his letter earlier today, and it remains the Government’s goal to seek new arrangements with the EU for the family reunion of unaccompanied child refugees. However, when he responds, could he update the House further? We understand that the Commission simply does not have a mandate from the member states to enter into negotiations on this issue with the UK, so those talks simply cannot progress as things stand. With that in mind, the Minister will know that his review does not commit to continuing the route, and he has offered no substitute to bridge the gap between the European co-operation ending and the possible restart of routes or any new routes that result from his proposed review. The Government’s rhetoric on the anticipated sovereign borders Bill has not given us hope on that front, but if he is serious about finding a way forward and continuing the family reunion co-operation that we are currently committed to, I urge him to support the amendment.

--- Later in debate ---

[Kevin Foster]

It is always a pleasure to follow my good friend, the hon. Member for Strangford (Jim Shannon), and to reflect on his comments. It would be a bit out of scope for me to get on to fishing, but I recognise his campaigning on freedom of religious belief. He raises again the points we make about the challenges that are still faced globally by those fleeing persecution, merely because they express the same faith that he and I, and many in this Chamber, share. He also talked about how those who relocated from Syria or the region had resettled and been integrated into life in Strangford, with excellent support, I am sure.

That brings me on to the interesting speech from my hon. Friend the Member for Ruislip, Northwood and Pinner (David Simmonds). I know he has long engaged with this issue, both since his arrival here and, crucially, beforehand, through his work as a councillor and through the Local Government Association. His reflections were interesting, particularly when he made the point about offers being mentioned, and asked why were they not actually made, in order to support Kent? Also, when we hear about offers being made in Europe, I think that it reveals the differences in the debate. The Government’s view is that now that we have left the European Union and the transition period is coming to an end, we are moving away in our wider immigration system from the idea of a two-tier approach to non-EEA and EEA. Why not offer places as part of our resettlement programmes more generally or offer them up to those coming straight from the region? This is one of the reasons why I have had very interesting conversations with the Lord Bishop of Durham about the idea of talent beyond borders, looking at how we can open some of our economic migration routes for those who are skilled migrants—who have skills and abilities—who are currently in camps in the region and have been identified as potentially even having skills that are in shortage in this country.

That is where the core of the discussion goes. We have left the European Union. Is it really sensible to carry on in a system that will replicate a unilateral system that effectively applies only to those who are in a collection of safe and democratic countries that we have now left? Yes, negotiations are ongoing. It would probably not be right for me to give a blow-by-blow account at the Dispatch Box. As we have said, if we cannot achieve a reciprocal agreement with the whole European Union, based on the generous offer that we made earlier this year, we will look to talk to individual countries within the European Union where there is a mutual interest in having an arrangement between us both.

Let me turn to why the Government will not and cannot accept Lords amendment 4B. Part of it requires the Government to lay a strategy for the relocation of unaccompanied children from Europe. Again, this would be rather difficult to deliver and is very broad in scope. My hon. Friend touched on this. Local authorities are already caring for over 5,000 unaccompanied asylum-seeking children—146% more than in 2014—and any move in a policy sense has to be balanced in terms of ensuring what offers are made locally. My local council, not controlled by my party, wrote to me earlier this year saying that we should be doing more for refugees across the world in resettlement, particularly in Europe. I asked them, “What was their offer?” Answer: nothing—after quite a bit of chasing about places. We do need to ensure that what we are offering up is backed up, when people arrive here, by resources and an ability to make a life here.

The amendment in lieu sets out a clear path for a review of our migration rules and is about creating safe and legal routes, including from the region directly. This is not just about avoiding a dangerous trip across the channel; it is about avoiding it and having no reason for a dangerous trip across the Mediterranean as well. That is why I am proud that we are one of the global leaders in resettlement and proud of the record that we have as a nation. When we do this review, we will take forward that reputation and ensure that we have a functioning system, but this time based on our having a global set of migration rules and not on a system that we were part of due to being a part of the EEA.

Question put, That this House disagrees with Lords amendment 4B.