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.

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[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.

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[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.