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.

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[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.