Immigration and Social Security Co-ordination (EU Withdrawal) Act 2020 (Consequential, Saving, Transitional and Transitory Provisions) (EU Exit) Regulations 2020

Kevin Foster Excerpts

Tuesday 8th December 2020 General Committees

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

I beg to move,

That the Committee has considered the Immigration and Social Security Co-ordination (EU Withdrawal) Act 2020 (Consequential, Saving, Transitional and Transitory Provisions) (EU Exit) Regulations 2020 (SI 2020, No. 1309).

It is a pleasure, as always, to serve under your chairmanship, Mrs Murray.

For the sake of time, I will refer to the statutory instrument as the consequential amendments SI. Parliament has approved the Immigration and Social Security Co-ordination (EU Withdrawal) Act 2020, which will end free movement on 31 December at the end of the transition period. The Act represents an important milestone in paving the way for the new points-based immigration system to operate from 1 January 2021 and to deliver our promise to have a single immigration system, which judges people by their talents and skills, not by where their passport comes from. The consequential amendments SI is the next step in ending free movement, and it completes the legislative changes necessary for that historic act. The SI is made under the delegated regulation-making power in section 5 of the 2020 Act, the scope of which was debated extensively in both Houses during its passage, including in the Bill Committee on which many members of this Committee served.

The Government were pleased to share an illustrative text of the SI in early September, and there are only limited changes to it in the version before the Committee today. The SI amends primary and secondary United Kingdom legislation as a consequence of, or in connection with, the provisions in part 1 of the 2020 Act, which end free movement and make provisions for the new status of Irish citizens. It amends legislation relating to immigration, nationality, benefits and services. It also amends devolved matters where changes are required for an immigration purpose to reflect the end of free movement, but not devolved legislation more generally.

As hon. Members will have noted, the SI is rather lengthy given the breadth of amendments to domestic legislation required, based on the number of times free movement has been mentioned in UK legislation during our membership of the European Union of more than 40 years. The effect of the legislative changes is to align the immigration treatment of European economic area citizens and their family members who are not protected by the withdrawal agreement and the UK’s implementation of that agreement with non-EEA citizens under the UK’s immigration system. Once free movement has ended, newly arriving EEA citizens and their family members will be subject to the same UK immigration law as non-EEA citizens; they will need to meet the requirements of the new points-based immigration system set out in the immigration rules made under the Immigration Act 1971. As members of the Committee may know, many of those routes opened for applications last week on 1 December.

The SI provides clear protections for Irish citizens and EEA citizens, and their family members granted status under the EU settlement scheme. It also removes references in domestic legislation to the UK’s membership of the EU and EU-derived law that has been retained by the European Union (Withdrawal) Act 2018, as amended by the EU (Withdrawal Agreement) Act 2020, at the end of the transition period.

Most of the changes will come into force at 11pm on 31 December—the end of the transition period—but there are some exceptions; the provision to bring EEA citizens within scope of the immigration skills charge came into force on 1 December to coincide with the opening of the new skilled worker route. That means that the charge will apply to EEA citizens who arrive in the UK from 1 January 2021 onwards under that route, and it is part of ensuring equality of treatment between citizens of the rest of the world and EEA citizens.

Various provisions to bring EEA citizens within the scope of the sham marriage and civil partnership referral investigation system do not come into effect at the end of the transition period. They will come into force on 1 July 2021, after the deadline for applications to the EUSS, at which point it will be easier for the Anglican Church in particular to differentiate between EEA citizens with status under the EUSS and those without. That reflects a range of other provisions that we have in place during the grace period next year before the deadline for applications.

The consequential amendments SI reflects the repeal of free movement at the end of the transition period, as enacted by Parliament’s approval of the Immigration and Social Security Co-ordination (EU Withdrawal) Act 2020. It makes the statute book coherent and terminates arrangements relevant to the operation of free movement law in EU legislation—the latter legislation will no longer be appropriate once free movement has ended—and implements our obligations under the withdrawal agreement. It is an essential step in fulfilling our promise to end free movement and to deliver on the referendum vote. That is something that the Government are determined to do, even if others would rather that the referendum result were ignored.

--- Later in debate ---

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

It would be good to rename my constituency for the benefit of colleagues, but it is good to see you in the Chair, Mrs Murray. I hope you can hear me okay. Colleagues might prefer not to hear me, but I will have my say anyway.

[Kevin Foster]

Always a pleasure.

[Stuart C. McDonald]

Thank you, Minister.

I am grateful to the Minister for the way he introduced the regulations. I concur with 99% of what the shadow Minister, the hon. Member for Halifax, had to say. It will be no surprise to the Minister that we, too, oppose the regulations. The SNP very much regrets the end of free movement. We believe that the hostile environment is a disaster. It is important to say that the regulations do not really end free movement; they are about extending the hostile environment. The two do not have to go together.

We have always argued for a declaratory scheme, and we maintain that that would have been a much better approach. However, there is no point going over all that old ground again. We have debated these points a million times and we are where we are. It is incumbent on us all to try to make the arrangements the Government have decided to put in place work as best we can.

When the Minister came before the Home Affairs Committee recently, I think it is fair to say that we had a fairly constructive exchange about how EEA citizens would be able to access the NHS and other public services in various hypothetical scenarios. In that vein, I want to probe him on another four brief scenarios. If he cannot answer the questions today, it would be useful to have the answers in writing. The shadow Minister said that these are very complicated regulations—I will come back to that point in a bit—and I genuinely do not know the answer to all these questions, despite my best efforts.

The first scenario is that in January—in the grace period, but after the transition period—two EEA nationals, an uncle and a niece, who could have applied to the settled status scheme but have not yet done so, go to rent a new property. The uncle is a worker, so his rights are protected by the grace period regulations, but the niece is not and does not have comprehensive sickness insurance. Arguably, she was therefore not exercising her treaty rights prior to the end of the transition period. As I understand it, that means she has no protection under the grace period regulations.

My first question is: is it the case that the worker—the uncle—would be able to rent, but not the niece? I understand that in the past, the Government have said, “We will not ask employers and landlords to make these checks,” but legally speaking, is it the case that the regulations would exclude the niece from the right to rent? Secondly, if they realised that they needed settled status and applied for it, would that situation remain the same, regardless of the fact of their application, until such time as a decision on the application was reached? Similarly, am I right in thinking that the uncle could access homelessness assistance, if he qualified for it—ironically he does not need to because he has the right to rent—whereas the niece could not access it, even though she is the one who would need it because she would struggle to access the right to rent?

The second scenario is the same as the first, except that it takes place in July, which is outside the grace period. In this case, as I understand it, neither the uncle nor the niece can rent or access housing assistance. Let us say that they can prove that they were negligently advised by lawyers that they did not need to apply for settlement because of a misunderstanding about nationality law—something I very much hope the Home Office would accept as a reasonable excuse for a late application. They make a late application, arguing that they have a reasonable excuse. Is it the case that while they wait for the application—even if it takes six week, eight weeks or two months—in the meantime neither of them would be able to rent and, similarly, they would not qualify for homelessness assistance?

Scenario three of four is the same as scenario two, but it is now July and one of the couple—the uncle and the niece—needs two small operations. They are not lifesaving, but they will fix some pretty serious pain. The first of the two operations happens just before they make the late application and it costs £10,000. The second happens after they make the application and it costs £15,000. Am I right in thinking that because of separate regulations made on 3 December—just last week—even the making of the late application means that the person continues to qualify for NHS treatment? Therefore, even while they could not rent or access homelessness assistance under the regulations that we are debating today, they could access the NHS.

If my understanding is right, why is there the inconsistency that while an application is outstanding, someone can get NHS treatment but not homelessness assistance? Is it not arguable that the regulations before us infringe the withdrawal agreement, particularly article 18(3), by not making a similar provision where a person has an outstanding late application? As I say, the Department of Health and Social Care published regulations last week that seemed to acknowledge that it has to give rights to those with outstanding applications, even if they are late; the Home Office does not appear to have recognised that.

Am I right in understanding that the £15,000 operation would not have to be paid for, because it happened while the application was outstanding? What about the £10,000 operation that happened just before the application went in? Even if the uncle and niece subsequently do get settled status, will they still be chased to pay the £10,000 for the operation that happened just before they submitted their application?

The fourth and final scenario again concerns a couple in a very similar position: they were badly advised and did not apply in time, so they have a reasonable excuse. Late next year, the Home Office charges them with illegal working. They apply in September for the settled status scheme and that is granted late. However, is it the case that the couple were, legally speaking—regardless of what practical answer the Home Office comes up with—guilty of a criminal offence from July, after the end of the grace period, until the application was decided? Because settled status is not retrospective, there would be a gap where they did not have status.

As I say, this is all very technical and I might have completely misunderstood some of the scenarios, but I have no doubt that we could go through every single one of the 60 or 70 regulations and conjure up scenarios that involve similar complications and technicalities. There are ways that the Home Office could make this easier. A declaratory scheme would be one, but putting that aside, there are things the Home Office should think about.

First, if a public body is approached by an EEA national without settled status and it appears that they could still apply for that settled status, perhaps we should put a duty on the public body to signpost them to the scheme. Rather than just saying, “You are not entitled to support,” there would be a duty on people to say, “Just now you are not entitled to support, but if you put in an application, you would be able to access it.” At the very least, I hope that is something the Home Office is encouraging of all people who are involved in checking immigration status, of whom there are many.

Secondly, if a person makes an application late—a situation I have alluded to—the Home Office should provide them with a certificate of application that makes it clear that they continue to be entitled to access support and all their rights while the application is outstanding. If there are clearly no reasonable grounds for the late application, the Home Office will be able to refuse immediately and no damage would be done. Otherwise, my view is that there is little to lose and much to gain from ensuring that they continue to be able to access all these rights while the application is outstanding. That seems to be the approach the Department of Health and Social Care has taken in the NHS regulations that were published last week, so I do not understand why that approach cannot be taken in the regulations before us today. It seems to me that that is arguably required by the withdrawal agreement.

Thirdly, if such a late application is successful, why do we not make settled status backdated so that there is not a break in the continuity of residence? When he was before the Home Affairs Committee, the Minister talked about how he was looking to ensure that that did not impact on nationality—for example, in the case of kids born during that period. I am aware that the Home Office is alive to this issue, but why not just make it retrospective in a blanket way, so that there is no gap in status?

I have one final request of the Minister. At the Home Affairs Committee, he was generous in agreeing to meet a couple of organisations. One to add to that list is the3million. It is a very sensible, pragmatic organisation. It accepts where we are at, and is just keen to work through all the scenarios and to work with the Government. If he is happy to meet it, that would be very helpful.

There are a million other issues I could raise today, such as access to national insurance numbers, which appears to be incredibly challenging for EU nationals.

I emphasise what the shadow Minister said about the complexity of the regulations. That is why we opposed the sweeping Henry VIII clauses when we debated the Immigration and Social Security Co-ordination (EU Withdrawal) Act 2020. It is why my party proposed an equivalent to the Social Security Advisory Committee. This issue is so technical that we need experts on housing law, marriage law, family law, social security law—it covers such a huge range of subjects. The regulations are much more detailed and technical than the Immigration and Social Security Co-ordination (EU Withdrawal) Bill, yet we have 90 minutes to consider them, with no witnesses and no access to experts, whereas the Bill essentially went through Parliament twice and we had lots of expert evidence to help us.

I have tried my best to scrutinise the regulations. Indeed, I think there might be a typo in regulation 12, if the Minister wants to note it down. The placing of the quotation marks and the stray “(3)” to my mind means that part of that regulation has no effect or has the opposite effect of what was intended. That is why this sort of regulation, which has important consequences, needs line-by-line scrutiny. I think that there is a mistake, but I do not know how we fix it, because we cannot amend the regulations, unlike the Bill.

My final question is: why rush this? Much as I hate it, free movement is coming to an end. Even if the regulations—or 90% of the regulations—were not passed until late next year, free movement would still end; it would simply mean that all these aspects of the hostile environment would not be applied to EEA nationals. There could be mistakes in here and we need to think about it much more carefully. Again, I echo what the shadow Minister says: let’s put this off and do it properly. As MPs, let us do our job of scrutinising the proposals properly by withdrawing the regulations and bringing them back as a Bill.

[Kevin Foster]

I thank members of the Committee for the debate we have had and for the observations they have made.

I will start with the comments of my hon. Friend the Member for South Leicestershire and then move on to the shadow Front Benchers. To be clear, we have said that we will publish a non-exhaustive list of examples. In each instance, a decision-maker should be able to use discretion if it is fair in the circumstances to do so. I have given examples, such as those who were under 18 on deadline day and their parent or local council, who had a duty to apply for them, did not. As I reassured my hon. Friend, when they hit the age of majority, which could be in 10, 13 or perhaps even 14 or 15 years’ time, and realise that there was no application, we would see it as reasonable for them to have assumed that their parent or guardian had done it.

Again, other circumstances include ill health or mental incapacity to make an application. I reassure Members that we will look at situations where someone has clearly received faulty or negligent legal advice in relation to their status. Generally, we will ensure that decision-makers are able to look at the circumstances and see whether there are reasonable grounds, rather than having a list and saying, “If you don’t meet that list, you can’t apply.”

[Neil Coyle (Bermondsey and Old Southwark) (Lab)]

If that extra discretion, and the complexity and anomalies that my hon. Friend the Member for Halifax mentioned, were being added to a functioning, gold-plated, brilliant system, Members might be assured, but it is being added to a dysfunctional Home Office that is failing many of our constituents week in, week out through delays and erroneous decisions that leave people destitute.

[Kevin Foster]

I am sorry to hear that description of the EUSS that has already had 4.26 million applications. I give the hon. Gentleman a tip that it is about to hit another milestone in numbers of applications. We think that it is working fairly well. For most people, making an application is a 15-minute job at home, using a smartphone.

We want to take the lessons from how the EUSS has worked into the wider immigration system. Hon. Members may not have picked this up, but in the skilled worker route, an EEA national can use their smart phone from home to apply rather than making a trip to a visa application centre. Building on the experience of the EUSS, we have been able to provide secure identity checks from home. For obvious reasons, I will not go into all the details of what we do to verify identity, but this has been a real success and I am sorry to hear that description of it.

To reassure my hon. Friend the Member for South Leicestershire, we will have a range of circumstances listed along non-exhaustive lines. The longer the delay, the more there is a chance that someone knows that they do not have entitlement under the withdrawal agreement, but is claiming that they do. We want decision-makers to have flexibility and to treat this as faces, not cases. There will be a list, but it is not exhaustive.

The hon. Member for Cumbernauld, Kilsyth and Kirkintilloch East always makes well thought-through contributions, even though we have fundamental policy disagreements on this and a range of other issues. I will provide a detailed written response to him and the Committee, but I shall deal with a couple of points now. He mentioned two EEA nationals. Let us assume that they are in England, because as he will know the right to rent checks do not apply outside England. If they were renting before 30 June a landlord is perfectly entitled to accept an EEA passport or national identity card as proof that they meet the compliant environment checks. If anyone has concerns, they can regularise and make their application via the EUSS straight after. We will not be asking landlords to make retrospective checks if they have accepted an EEA passport or identity card, just as we would not expect employers on 1 July suddenly to check that every member of their staff has EUSS status. Up until that point, landlords and employers cannot insist on it, provided that someone has presented an appropriate document. They can, of course, use it and we are finding that it is very popular. Between April and June there were 400,000 checks under the new improved service, 100,000 of which were to look at EUSS status. Those who have it are already finding it a handy and convenient way of meeting the checks.

[Stuart C. McDonald]

I am grateful to the Minister for saying that he will set these things out in writing, and I get that the Home Office is not requiring landlords and employers to do those checks. I would like clarity on this: is the Home Office saying to landlords, “You do not need to do that check even though in the niece scenario she does not have the right to rent?” I am concerned that there is a danger in saying to landlords, “You don’t need to worry about the fact that you are renting to someone who does not have the right to rent.” Given everything that we know about how the right to rent operates, is that not just going to ramp up professional indemnity, so that landlords will take the safe course and not touch these people with a barge pole?

[Kevin Foster]

My next point relates to that example. He gave a clear example of a worker here in accordance with the EEA regulations on free movement. His second example was of someone who did not have retained rights because they were not here in strict accordance with those regulations. As he will know, the criteria for the EUSS is not strict compliance with EEA free movement regulations – it is residence in the United Kingdom. He would support the notion that it would produce some harsh outcomes if we based it purely on the free movement regulations. The situation that he has described would be that of the landlord in England who is renting today. He is talking today about someone who is not here strictly in accordance with the free movement regulations and who does not have free movement rights to be retained at 11 pm on 31 December – although I accept that someone could get a job and create new free movement rights before 31 December. It would be exactly the same legal position in January. No one has fewer rights or less ability in January than they have at 11 pm on 31 December. However, beyond the transition period new free movement rights cannot be created. That is the core difference.

Moving on to what would be a reasonable excuse for a late application, on some of the finer points – for example, someone being badly advised – it would probably be better for clarity to respond to those in writing.

I met representatives of We Belong last week. It was a productive conversation and we look forward to taking forward some changes. The3million group is on some of the Home Office’s advisory panels that are regularly engaged at official level. Once we have published the new guidance on the next milestones for the EUSS – the late grounds guidance – we will review ministerial engagement with the groups. I will be looking to meet the3million group at that stage – although by then we may have hit another milestone in millions of applications. We very much welcome all the applications coming in. We genuinely welcome all groups that promote the message that it is time to get in applications. If people have any concerns about their position in the United Kingdom beyond 1 July next year, now is the time to get in their application. Support is available on the phone, online and through our grant-funded organisations if people have any queries or concerns, or genuinely need assistance with the application.

The hon. Member for Cumbernauld, Kilsyth and Kirkintilloch East said that it would be no surprise that, as a member of the Scottish National party, he will opposing the legislation. No, it is not. I recognise that the SNP has a long and fairly solid policy on free movement. I was slightly more surprised at the position being adopted by the Labour party, given that we are only a few days away from the anniversary of the general election, in which an inability to respect the referendum result became a decisive moment for many former Labour Members of Parliament. This SI is about ending the references to free movement in UK law. Free movement is ending. There will not be a reciprocal arrangement on the continent of Europe beyond the end of the transition period. We published a draft of this regulation while the Bill was being debated in the House in order to allow more time for scrutiny. We accepted that just publishing it under the usual SI rules would not be the best way of ensuring good scrutiny and debate. We do not imagine that some of the changes – for example, designating every registry office as a designated place – will be particularly controversial, given that it will make life easier for many non-EEA citizens to get married in the UK. It is a surprise to see the resistance to ending free movement, and to having a single immigration system that judges people by what they have to offer to the UK and their talents, not by where their passports were issued, continuing a year after the general election, but I am sure that it will be noted with interest across the now blue wall.

There are many areas of law to be changed. We joined the European Union – or the EEC as it was called then – in 1973. That means that, unsurprisingly, there is a large number of references across legislation to free movement. Any immigration law that has been passed since then by Governments of both colours will inevitably have referred to the fact that EU citizens had free movement rights. That free movement is coming to an end. That policy has been supported and it was clearly part of our manifesto commitment. In terms of the civil service rules, it is right that someone who works in the civil service has the appropriate immigration permission for the UK, as was of course covered by the withdrawal agreement. I want to reassure anyone who is working in the public service, who is an EEA national and who will inherently have free movement because they are working here, that the EUSS is there for them and we very much look forward to them making an application.

It is a surprise that, a year later, we are still hearing reasons from the Labour party why they do not support this core part of implementing the referendum result. I accept that other parties have a clear view on continuing freedom of movement, but I was not aware that the Labour party did: one day it argues that it does, and other days it argues that it does not. For this Government, the focus is on ensuring a functioning statute book, that we have an EUSS that is effective in protecting the rights of our friends and neighbours who have come to this country and who make a huge difference to it, and that we move forward and deliver our promises. Therefore, I ask the Committee to support the regulation.

Question put,

UK Points-based Immigration System

Kevin Foster Excerpts

Tuesday 1st December 2020 Written Statements

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

I am pleased to confirm the Government have today launched a number of immigration routes under the new UK points-based system, including the skilled worker route. This is a significant milestone and delivers on this Government’s commitment to take back control of our borders by ending freedom of movement with the EU and replacing it with a global points-based system.

The Immigration and Social Security Co-ordination (EU Withdrawal) Act 2020, which received Royal Assent on 11 November, ends free movement on 31 December 2020 and paves the way for our new points-based system that treats EU and non-EU nationals equally.

Applicants for the new routes can now start to apply under the points-based system. EEA nationals who arrive in the UK before 31 December 2020 remain eligible for the EU settlement scheme. Over 4.2 million have already applied and others have until 30 June 2021 to do so.

The points-based system will work in the interests of the whole of our United Kingdom and prioritise the skills a person has to offer, not where their passport comes from. It will ensure we attract the brightest and best talent we need to contribute to our economy, our communities and our public services. It also forms a critical part of this country’s economic recovery by ensuring investment in the UK domestic workforce and helping us to create a high-wage, high-skill, high-productivity economy is the focus of employer’s recruitment activities.

Today’s launch builds on the successful opening of the reformed global talent route in February, the health and care visa in August and the student and child student routes in October. In addition, as the Chancellor set out in the spending review last week, we are supporting the delivery of the new borders and immigration system with an additional £217 million of funding.

Ending free movement and introducing the points-based system is the first phase of our plans to transform the operation of our borders and immigration system. Additional routes will be opened in the coming months and our longer-term plans will further simplify, enable and digitise our systems to put customers at the heart of a firmer, fairer and easier to navigate borders and immigration system.

[HCWS614]

Draft Immigration (Leave to Enter and Remain) (Amendment) (EU Exit) Order 2020

Kevin Foster Excerpts

Tuesday 24th November 2020 General Committees

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

I beg to move,

That the Committee has considered the draft Immigration (Leave to Enter and Remain) (Amendment) (EU Exit) Order 2020.

Diolch, Ms Rees. It is a pleasure to serve under your chairmanship for the first time.

The order was laid before Parliament in October, and is required to enable a number of changes arising from the end of free movement. First, it allows nationals of the European Union, the European economic area and Switzerland—for the sake of simplicity, I will refer to them from here on in collectively as ‘EEA’ citizens—who are aged 12 or above; using a biometric national passport rather than an EEA identity card; and seeking to enter the United Kingdom as a visitor under the immigration rules to be granted such leave by passing through an e-Gate, without routinely having to be interviewed by a Border Force officer about their intentions.

The order also allows EEA citizens, as well as other nationalities already eligible to use e-Gates, who are arriving in the UK under the new S2 healthcare visitor route to obtain six months leave to enter as an S2 healthcare visitor, either granted orally by a Border Force officer, or automatically by passing through an e-Gate in a similar way to standard visitors. The order allows those holding a service provider from Switzerland entry clearance to enter the UK on an unlimited number of occasions during its validity, receiving 90 days leave to enter upon each entry. It also defines the type of leave obtained by a person passing through an e-Gate, thus enabling Border Force officers to examine such persons and to cancel their leave where appropriate, for example if customs offending was identified at a later point in the airport.

Given the relatively simple and, I hope, the uncontroversial nature of the statutory instrument, I commend it to the Committee.

--- Later in debate ---

[Kevin Foster]

I thank my shadow for her overall constructive approach and response.

EEA nationals who are eligible to apply to the EUSS will still be able to use their passport and their ID card at the border to enter, as they do today. Let me clear that going through an e-Gate would not invalidate their position in terms of making an EUSS application, if they are entitled to do so, before the end of the grace period. We have discussed in other forums the provisions for late applications.

Given the grace period and the deadline for EUSS application not being until 30 June, for the purposes of a right to work check, an employer can accept an EEA passport or identity card as proof of entitlement to work up to 30 June 2021. We do not intend to require retrospective status checks, but beyond 1 July 2021 we will expect employers not only to take that passport as a form of identity but to check EUSS status is in place, or other status under the points-based system for those who arrive after 1 January. After that date, EEA nationals will enter who are not entitled to the protections under the withdrawal agreement.

Where an employer carries out a compliance check for the right to work between 1 January 2021 and 30 June 2021, it would be a reasonable excuse for that employer to say that they saw an EEA passport, even if it later transpired that that person was not covered by the withdrawal agreement, and was not entitled to be here. Obviously, that would have consequences for them, having effectively made a dishonest declaration to their employer that they were covered. The employer, however, would have the reasonable excuse that they had done what they were required to do to comply with the necessary checks and requirements. There are also provisions in place for those who, for the sake of argument, are temporarily away from the United Kingdom on the night of 31 December to 1 January. I am conscious that that issue has been raised, but being away from home at 11.01 on the evening of 31 December will not see someone lose their entitlements if they have yet to apply to the EUSS. However, and as the shadow Minister has heard me say before, if any one has any concerns about their position next year, or beyond 30 June, we have a simple message for them: get your application into the EUSS today. It is free, simple to do and all that people are required to do is prove their identity, show evidence that they live in the United Kingdom, and declare any criminal records. Those who have been here for more than five years’ residence are granted settled status. I hope that answers the hon. Lady’s queries about EEA nationals and makes it clear that the system will not prejudice them. I think we would all agree that it would be rather odd to send people to the primary control point to have such discussions about entry.

The hon. Lady made a fair point about concerns relating to border security. She will be aware that a range of non-EEA nationals from our most trusted partners can already use the e-Gates. Those nationals include those from border five countries, such as Canada, Australia, and the United States, plus those from Japan, Singapore and South Korea. We have strong information-sharing arrangements with those countries. In fact, e-Gates have the advantage in identifying a slightly higher rate of incorrect documents than those spotted by physical examination. She will appreciate that I do not want to go into all the details about how our systems at the border identify dodgy documents, but e-Gates offer some good security advantages.

We check against a range of databases, and I know that attention has been paid to the Schengen Information System – SIS II. We made an offer to the EU to continue to be a part of that, subject to appropriate negotiation, but my advice is that the European Commission has stated its view that it is not legally possible for a non-Schengen third country to co-operate through SIS II. Switzerland has been cited as one such third country, but, unlike the UK, it is a Schengen country. We have maintained that offer, and regret the view expressed by the Commission. Some of the figures quoted in relation to SIS II also include UK law enforcement officer checks on the police national computer—something not inherently linked to information on border checks through SIS II. Some of the records also relate to documents rather than to people.

We are working on fall backs very similar to Interpol and information sharing. Clearly we will talk to colleagues because we have a mutual interest as neighbouring friendly democracies, and as we talk to New Zealand, Canada and other partners. That dialogue ensures that those who may present a threat, those whom we should not look to welcome to the United Kingdom, or those who fellow law enforcement agencies may wish to catch up with are automatically checked.

The type of information that is available when someone is at a primary control point and they swipe their passport is similar to the information derived from checks at e-Gates. I hope that reassures people. If there is a reason for someone to be interviewed, they will be flagged to a Border Force official, who will intervene. The system has the necessary resource and people should be reassured that the information garnered is the same at both a primary control point and at an e-Gate. If there is a query or warning, a Border Force official will intervene or make the necessary decision. We continue to work on capacity via existing bilateral agreements and Interpol. We understand that a number of counterparts in EU states look to circulate SIS II information via Interpol channels, although as the shadow Minister and her colleague, the shadow Security Minister are aware, there are issues about some elements of Interpol’s operation.

I should make it clear that we use SIS II for law enforcement and not, I understand, for immigration purposes, but we will obviously check security information at the border. That partly reflects the fact that we are not in Schengen.

We are continuing to negotiate with the EU. We hope to reach a mutually beneficial deal, but just as the EU has not taken no deal off the table, nor has the UK if the red lines set by the UK Government are crossed. We are having constructive discussions, however, and I am sure that the Prime Minister looks forward to updating the House on their progress when he is able to do so.

This has been a useful opportunity to consider some of the issues related to the SI, and I commend it to the Committee.

Question put and agreed to.

Applications for British Citizenship: War Crimes Screening

Kevin Foster Excerpts

Thursday 19th November 2020 Written Statements

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

I have made the Equality (War Crimes etc.) Arrangements 2020 and the Race Relations (Northern Ireland) (War Crimes etc.) Arrangements 2020 to enable a Home Office Minister to subject applications from certain nationalities for British citizenship to more rigorous scrutiny than others for the purposes of determining whether the applicant has committed, been complicit in the commission of, or otherwise been associated with the commission of war crimes, crimes against humanity or genocide.

The Equality (War Crimes etc.) Arrangements 2020 are made under paragraph (1)(1)(d) of schedule 23 to the Equality Act 2010, and replace the Equality (War Crimes etc.) Arrangements 2013. The corresponding Race Relations (Northern Ireland) (War Crimes etc.) Arrangements 2020 are made under article 40 paragraph 2(c) Race Relations (Northern Ireland) Order 1997 and replace the Race Relations (Northern Ireland) (War Crimes etc.) Arrangements 2013.

The condition for subjecting these applications to more rigorous scrutiny is that the applicant is a national of a state specified on a list approved personally by a Home Office Minister for the purpose of the arrangements.

I have reviewed and approved this list and I am satisfied the conditions set out in the arrangements are met in respect of the countries on the list.

The arrangements will be reviewed on an annual basis and will remain in force until revoked. I will update Parliament when new arrangements are made.

Copies of the arrangements will be placed in the Libraries of both Houses.

[HCWS589]

Oral Answers to Questions

Kevin Foster Excerpts

Monday 9th November 2020 Commons Chamber

[Greg Smith (Buckingham) (Con)]

What progress her Department has made in introducing a points-based immigration system.

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

The Government are making excellent progress on delivering one of the key promises that we made to the British people at the last election. Our new, fairer, firmer, skills-led points-based system will align the treatment of EU and non-EU nationals and deliver for the whole of our United Kingdom. Some routes are already open and most remaining routes will be open from 1 December.

[Greg Smith]

I thank my hon. Friend for that answer. Contrary to some of the arguments put forward by those who oppose a fairer immigration system, can he reassure the House that the new points-based system will, in fact, make it more straightforward and easier for medical professionals, from wherever they are around the globe, to be able to come to work in the United Kingdom as part of our NHS?

[Kevin Foster]

Yes, absolutely. The NHS and health and care sector, including Buckinghamshire Healthcare NHS Trust, can continue to access the best and brightest from across the world under our new points-based system. The health and care visa was launched on 4 August and thousands of statuses have already been granted under it and those eligible benefit from fast-track visa processing, reduced visa fees and will not pay the immigration health surcharge.

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

Kevin Foster Excerpts

Consideration of Lords amendments
Wednesday 4th November 2020 Commons Chamber

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

I beg to move, That this House disagrees with Lords amendment 4B.

[Mr Speaker]

With this it will be convenient to consider Government amendments (a) to (c) in lieu of Lords amendment 4B.

[Kevin Foster]

Lords amendment 4B relates to family reunion and unaccompanied asylum-seeking children. I am sure that hon. Members will have in mind the tragic events in the channel last week. Let me reiterate very firmly that the Government are determined to end these dangerous, illegal and unnecessary crossings to ensure that lives are not lost and that ruthless criminal gangs no longer profit from this criminal activity.

As my right hon. Friend the Home Secretary recently announced at the Conservative party conference, we intend to reform our broken asylum system to make it firm but fair. We intend to bring forward legislation next year to deliver this, allowing for a wider debate on the subject. Our reformed system will be fair and compassionate towards those who need our help by welcoming people through safe and legal routes. It will also be firm and stand up for the law-abiding majority by stopping the abuse of the system by those who raise no founded claims through protected routes but do so purely to frustrate the implementation of our immigration law and procedure.

Let me reassure hon. Members that the Government remain committed to the principle of family unity and to supporting vulnerable children. We have a very proud record of providing safety to those who need it through our asylum system and world-leading resettlement schemes, and we are determined that that continues. We have granted protection and other leave to more than 44,000 children seeking protection since 2010. The UK continues to be one of the highest recipients of asylum claims from unaccompanied children across Europe, receiving more claims than any EU member state in 2019, and 20% of all claims made in the EU are in the UK.

The Government understand the importance of this issue, and it is right that we continue to debate it. Lords amendment 4B is well-intentioned in seeking to ensure that adequate protection is in place for vulnerable asylum-seeking children. However, we have made a credible and serious offer to the EU on new arrangements for the family reunion of unaccompanied asylum-seeking children. It remains our goal to negotiate such an agreement. As my noble Friend Baroness Williams announced in the other place on 21 October, in the event of no negotiated outcome, we will pursue bilateral negotiations on post-transition migration issues with mutual interest countries, including on family reunion for unaccompanied asylum-seeking children. Government policy has not changed on this matter.

However, it is worth noting that the UK already provides safe and legal routes for people to join family members in the UK through our existing immigration rules, all of which are unaffected by our exit from the EU, as they apply globally. In the year ending June 2020, the Government issued 6,320 refugee family reunion visas and have issued more than 29,000 in the last five years. This shows that our existing refugee family reunion routes are working well, and these routes will continue to apply, including to people in the EU, after the transition period. Our resettlement schemes were the largest in Europe over the last five years, directly resettling more than 25,000 people from regions of conflict and instability, half of whom were children. During the debate in the other place on 21 October, the Government committed, as part of this vital work, to conduct a review of safe and legal routes into the UK, including those for unaccompanied asylum-seeking children in EU member states to reunite with family members here in the United Kingdom.

The substantive amendment that the Government have tabled in lieu, amendment (a), makes important statutory commitments, demonstrating the Government’s assurances to review legal routes to the UK for people seeking protection in EU member states or seeking to come to the UK to make a protection claim, including for unaccompanied asylum-seeking children to join their family members here in the United Kingdom; to publicly consult on legal routes for unaccompanied asylum-seeking children in the EU seeking to join family members in the UK; to lay a statement before Parliament providing further details of that review and public consultation within three months of the Bill receiving Royal Assent; and to prepare a report on the outcome of the review, publish it and lay it before Parliament. Amendments (b) and (c) concern commencement of the commitment in amendment (a) to lay a statement before Parliament and specify that it will come into force within three months of Royal Assent.

I trust Members will agree that amendment (a) in lieu is substantial and clearly demonstrates how seriously this Government take the issue of family unity for vulnerable children. It is important that we consider these routes, to discourage vulnerable children from making the dangerous and illegal journeys that can result in the kind of tragedy we saw last week. Due to the scope of the Bill, amendment (a) refers only to legal routes for those who have made an application for international protection in an EU member state or are seeking to come to the UK from a member state to claim protection here. However, I can confirm that the review we conduct will be concerned with legal routes from all countries, not just EU member states. That is in line with our new global approach to the future immigration system and ensures that there is no advantage to making a dangerous journey across the Mediterranean, often organised by criminal trafficking gangs. Those granted permission under these routes can instead travel safely—via scheduled air services, for example—to the United Kingdom.

[Mr Alistair Carmichael (Orkney and Shetland) (LD)]

The Minister tells us that the system is working well and that it would be dangerous to change it, and for that reason, the Government are not going to change it. What purpose is served by a consultation in those circumstances?

[Kevin Foster]

We are happy to look at a proper review of the rules. Our current rules apply alongside Dublin for those who are within the EU. We think it is appropriate to take stock, as we are doing with the rest of our migration system, as our arrangements fundamentally change with the European Union. We are happy to make the commitment to review them for the future; that is part of the general stock-take we are doing. It is not unreasonable to highlight our record on resettlement and this country’s commitments and the actions it has taken, compared with the commentary we sometimes hear. I am sorry to hear that the right hon. Member does not see a review of the rules as the way forward, but I am sure that he and his colleagues will look to proactively and positively engage with the discussion that this amendment and the review will engender.

It is now essential that the Bill receives Royal Assent without further delay if key elements of the Government’s future border and immigration system, including the new skilled workers routes as well as social security co-ordination, are to be implemented as planned. Further delay would put at risk the ending of free movement at the end of the transition period, which means the UK would effectively continue to have free movement, but unreciprocated by the European Union, into 2021. We cannot accept a delay to that key manifesto commitment. I therefore hope that, for all the reasons I have outlined today, the House will now support our amendments (a), (b) and (c) in lieu, and the statutory commitments they contain, and disagree with the Lords in their amendment 4B.

[Holly Lynch (Halifax) (Lab)]

I want to start by thanking the Minister for taking the time earlier this week to explain the Government’s amendments in lieu, and for writing to me and others today with further details. Although we do not have a problem with the Government’s amendments—on the contrary, we welcome the opportunity to review all the safe and legal routes available to those fleeing war, torture or persecution and who have grounds to seek asylum in the UK—the review offered still falls a long way short of the commitment that we have asked for in Lords amendment 4B.

The review is a welcome addition to the Bill, but the fact that it is to be introduced through an amendment in lieu of ours makes it feel somewhat hollow by comparison. The Minister will be aware that support for our amendment in the only slightly varying drafts in the other place, spearheaded so ably by Lord Dubs, has resulted in two significant Government defeats, and efforts in the Commons have consistently had support from Members on his own Back Benches. I want to thank them for their work on this, not least the hon. Member for East Worthing and Shoreham (Tim Loughton). He and my right hon. Friend the Member for Normanton, Pontefract and Castleford (Yvette Cooper), through their work on the Home Affairs Committee, have championed the merits of continuing the routes for unaccompanied child refugees.

We ask the Minister one more time to reflect on why adopting the Dubs amendment in its entirely is not just critical but time-critical. We debate the amendment today with 56 days to go until the Dublin regulations end, and with them the lifeline they offer, and we fall back on the immigration rules. We also debate the merits of our amendment, as the Minister has already said, in the shadow of such tragedy in the English channel this year. The sinking of just one of those insecure boats just last week resulted in the loss of life of four people, two of them children who were just six and nine. A further 15 people were taken to hospital, and three more are missing, presumed dead, including the 15-month-old baby of the Iranian Kurd family who died. It is a truly harrowing reminder that people are making more and more desperate decisions as this Government’s squeeze on safe and legal routes continues. It demonstrates that the morally bankrupt traffickers, who allow children and adults alike to get into their dangerous boats and set off to sea in bad weather, will continue to exploit people in the worst possible ways unless we reopen and continue those safe and legal alternatives, family reunion being one of them.

The deliberations and ping-pong between the two Houses on the matter of family reunion or the question of accepting unaccompanied child refugees should not be politically contentious. We are a decent and humanitarian country that takes seriously the requirement, enshrined in international law, to consider asylum claims and offer refuge to those fleeing persecution and destitution, and the Minister has rightly spoken of our country’s proud record on that.

When the House previously considered Lords amendments to the Bill, the Government rejected Lords amendment 4—the earlier version of this amendment—citing financial privilege, as is so often the parliamentary way. I am inclined to agree with Lord Dubs when he said:

“Given the time we spent on the issue and its importance, to say that the technicality of financial privilege is sufficient to dispose of it…falls short of being humanitarian”.—[Official Report, House of Lords, 21 October 2020; Vol. 806, c. 1595.]

I heard the Minister’s contribution and read his letter earlier today, and it remains the Government’s goal to seek new arrangements with the EU for the family reunion of unaccompanied child refugees. However, when he responds, could he update the House further? We understand that the Commission simply does not have a mandate from the member states to enter into negotiations on this issue with the UK, so those talks simply cannot progress as things stand. With that in mind, the Minister will know that his review does not commit to continuing the route, and he has offered no substitute to bridge the gap between the European co-operation ending and the possible restart of routes or any new routes that result from his proposed review. The Government’s rhetoric on the anticipated sovereign borders Bill has not given us hope on that front, but if he is serious about finding a way forward and continuing the family reunion co-operation that we are currently committed to, I urge him to support the amendment.

--- Later in debate ---

[Kevin Foster]

It is always a pleasure to follow my good friend, the hon. Member for Strangford (Jim Shannon), and to reflect on his comments. It would be a bit out of scope for me to get on to fishing, but I recognise his campaigning on freedom of religious belief. He raises again the points we make about the challenges that are still faced globally by those fleeing persecution, merely because they express the same faith that he and I, and many in this Chamber, share. He also talked about how those who relocated from Syria or the region had resettled and been integrated into life in Strangford, with excellent support, I am sure.

That brings me on to the interesting speech from my hon. Friend the Member for Ruislip, Northwood and Pinner (David Simmonds). I know he has long engaged with this issue, both since his arrival here and, crucially, beforehand, through his work as a councillor and through the Local Government Association. His reflections were interesting, particularly when he made the point about offers being mentioned, and asked why were they not actually made, in order to support Kent? Also, when we hear about offers being made in Europe, I think that it reveals the differences in the debate. The Government’s view is that now that we have left the European Union and the transition period is coming to an end, we are moving away in our wider immigration system from the idea of a two-tier approach to non-EEA and EEA. Why not offer places as part of our resettlement programmes more generally or offer them up to those coming straight from the region? This is one of the reasons why I have had very interesting conversations with the Lord Bishop of Durham about the idea of talent beyond borders, looking at how we can open some of our economic migration routes for those who are skilled migrants—who have skills and abilities—who are currently in camps in the region and have been identified as potentially even having skills that are in shortage in this country.

That is where the core of the discussion goes. We have left the European Union. Is it really sensible to carry on in a system that will replicate a unilateral system that effectively applies only to those who are in a collection of safe and democratic countries that we have now left? Yes, negotiations are ongoing. It would probably not be right for me to give a blow-by-blow account at the Dispatch Box. As we have said, if we cannot achieve a reciprocal agreement with the whole European Union, based on the generous offer that we made earlier this year, we will look to talk to individual countries within the European Union where there is a mutual interest in having an arrangement between us both.

Let me turn to why the Government will not and cannot accept Lords amendment 4B. Part of it requires the Government to lay a strategy for the relocation of unaccompanied children from Europe. Again, this would be rather difficult to deliver and is very broad in scope. My hon. Friend touched on this. Local authorities are already caring for over 5,000 unaccompanied asylum-seeking children—146% more than in 2014—and any move in a policy sense has to be balanced in terms of ensuring what offers are made locally. My local council, not controlled by my party, wrote to me earlier this year saying that we should be doing more for refugees across the world in resettlement, particularly in Europe. I asked them, “What was their offer?” Answer: nothing—after quite a bit of chasing about places. We do need to ensure that what we are offering up is backed up, when people arrive here, by resources and an ability to make a life here.

The amendment in lieu sets out a clear path for a review of our migration rules and is about creating safe and legal routes, including from the region directly. This is not just about avoiding a dangerous trip across the channel; it is about avoiding it and having no reason for a dangerous trip across the Mediterranean as well. That is why I am proud that we are one of the global leaders in resettlement and proud of the record that we have as a nation. When we do this review, we will take forward that reputation and ensure that we have a functioning system, but this time based on our having a global set of migration rules and not on a system that we were part of due to being a part of the EEA.

Question put, That this House disagrees with Lords amendment 4B.

Points-based Immigration System

Kevin Foster Excerpts

Thursday 22nd October 2020 Written Statements

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

My right hon. Friend the Home Secretary is today laying before the House a statement of changes in immigration rules.

In February and July 2020, we published our policy statements on the UK’s points-based immigration system. This set out how we would fulfil our commitment to the British public to take back control of our borders by ending free movement and introducing a single, global immigration system. The points-based system will cater for the most highly skilled workers, skilled workers, students and a range of other specialist work routes including routes for global leaders in their field and innovators.

The changes to the immigration rules are a crucial part of the future points-based immigration system. They also introduce the new Hong Kong British national (Overseas) (BN(O)) route for a BN(O) citizen who wants to live and work in the UK and will extend the Afghan interpreter ex gratia scheme.

The rules also represent a significant further step in our commitment to simplify the rules, implementing many of the recommendations of the Law Commission to ensure we provide greater clarity to migrants, employers and all other users of the rules.

At the end of the transition period on 31 December 2020, free movement will end and newly arriving European economic area (EEA) and Swiss citizens will come within the scope of the new global immigration system. These rules will generally commence between 1 December and 1 January, but EEA nationals will not be granted permission until after 1 January as they are able to rely on free movement right until then.

I have set out in a separate document the details of the changes we are making to the immigration rules, which should be read together with this statement.

The attachment can be viewed online at: http://www.parliament.uk/business/publications/written-questions-answers-statements/written-statement/Commons/2020-10-22/HCWS533/.

[HCWS533]

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

Kevin Foster Excerpts

Consideration of Lords amendments & Ping Pong & Ping Pong: House of Commons
Monday 19th October 2020 Commons Chamber

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

I beg to move, That this House disagrees with Lords amendment 1.

[Madam Deputy Speaker]

With this it will be convenient to discuss the following:

Lords amendment 2, and Government motion to disagree.

Lords amendment 3, and amendment (a) thereto, and Government motion to disagree with Lords amendment 3.

Lords amendment 4, and Government motion to disagree.

Lords amendment 5, and Government motion to disagree.

Lords amendment 6, and Government motion to disagree.

Lords amendment 7, and Government motion to disagree.

Lords amendment 8, and Government motion to disagree.

Lords amendment 9, and Government motion to disagree.

Lords amendment 10, and Government motion to disagree.

Lords amendment 11.

I am sure colleagues will see that a large number of Members wish to contribute to this debate. We have had two quite lengthy statements, so there is pressure on time. That means we will be imposing an initial six-minute limit on speeches from Back Benchers. I hope that Front Benchers will keep their remarks as brief as possible in the circumstances to allow others to contribute.

[Kevin Foster]

This Bill delivers on a key manifesto commitment to end the EU’s rules on free movement, and to deliver our fairer and firmer points-based immigration system. I am pleased the Bill has passed its Third Reading in the other place, led by my colleague Baroness Williams of Trafford. For such a short Bill, there has been substantial debate on a wide range of immigration issues. There are issues on which Members disagree with the Government, but we must now enact this Bill and deliver on our promise to the British people. I will speak to each amendment in turn.

Lords amendment 1 requires publication of an independent report on the impact of ending free movement on the social care sector. Although it is well intentioned, the amendment is unnecessary because we already have independent reporting in this area through Skills for Care and the Migration Advisory Committee, which is now free to work to its own commissions in addition to those given to it by the Government.

The Department of Health and Social Care funds Skills for Care to deliver a wide range of activities to support the Government’s priorities for the social care sector. This includes programmes to support employers and the workforce with skills development, promote and support recruitment into the sector, and support leadership development. The Department of Health and Social Care uses the data produced by Skills for Care and the trends identified to inform its policy development to support the adult social care sector to recruit, train and develop its vital workforce.

[Sir Edward Leigh (Gainsborough) (Con)]

The social care sector is a typical example of where cheap EU labour has been brought in to undercut our own labour force. The public are really worried that, as EU migration has declined, so migration from other parts of the world has increased. I want the Minister to give a categorical assurance that, whatever happens with these negotiations, we will get a grip on migration from other parts of the world and we will not undercut our own workforce.

[Kevin Foster]

We have been very clear that we will have a points-based system that will respond to the needs of the United Kingdom’s labour market and workforce, and that our migration system will not provide an alternative to investing in and rewarding those who work in critical sectors such as social care.

As Members will know, I have previously spoken at length about the role of the Migration Advisory Committee, which now has an expanded remit to examine any aspect of the immigration system and to provide annual reports that Parliament can, and almost certainly will, debate. I have also outlined the Government’s continued commitment to keeping all policies, including the skilled worker route, under review. We do have the flexibility to adapt and adjust on the basis of experience and evidence. Hon. Members will have heard me say before that the immigration system cannot be the solution to issues in the social care sector. We must not continue to rely on people coming to the UK when the focus should be on the domestic workforce to address shortages in the sector. As was just touched on, migration policy should not be an alternative for employers to offering the type of rewarding packages that care staff deserve.

To deliver change to the social care sector, we need to make changes to the way that we train, recruit, attract and retain staff. The Government are focused on working alongside the sector, including through Skills for Care, to ensure that the workforce can meet the increasing demands and continue to deliver quality, compassionate care. Immigration must be part of our overall strategy for this sector’s workforce, not a handy alternative for employers to—

[Yvette Cooper (Normanton, Pontefract and Castleford) (Lab)]

The Migration Advisory Committee has effectively recommended a significant increase in the pay of social care staff, which they urgently need—and they have been under immense pressure this year. Will the Minister accept that recommendation from the Migration Advisory Committee?

--- Later in debate ---

[Kevin Foster]

The right hon. Member will have seen the recommendations of the Migration Advisory Committee, and I know that my colleagues in the Department of Health and Social Care will consider them closely. I certainly hope that if she is keen on the MAC, she will support the Government’s position on the amendment in the Lobby later.

[John Redwood (Wokingham) (Con)]

Does the Minister accept that paying people from the local labour force better, and paying for their training, is a much cheaper solution than building lots of houses to invite migrants in, and a much more popular one?

[Kevin Foster]

My right hon. Friend points out that in a time when we have large numbers of people affected by the current economic situation, we need to focus on our own UK-based workforce when it comes to filling needs.

[Nadia Whittome (Nottingham East) (Lab)]

Will the Minister give way?

[Kevin Foster]

I am conscious that I need to make progress.

Lords amendment 2 seeks to continue certain family reunion arrangements provided by EU law—the so-called Surinder Singh route. It would require us to provide lifetime rights for British citizens resident in the European economic area or Switzerland by the end of the transition period to return to the UK accompanied or joined by their non-British close family members on current EU free movement law terms. In effect, that means that these rights would continue perpetually. Family members of British citizens resident in the EEA or Switzerland at the end of the transition period are not protected by the withdrawal agreement in terms of returning to the UK. However, we have made transition arrangements for them. British citizens living in the EEA or Switzerland will have until 29 March 2022 to bring their existing close family members—a spouse, civil partner, unmarried partner in a long-term relationship, child or dependent parent—to the UK on EU law terms. The family relationship must have existed before the UK left the EU on 31 January 2020 and continue to exist. Those family members will also then be eligible to apply to remain in the UK under the EU settlement scheme. Now that we have left the EU, we have to be fair to other British citizens, whether they are living overseas or in the UK, and to UK taxpayers who can be called on to pay the costs when family life is not established sustainably in the UK. In the long run, the same rules should apply to all, not continue indefinitely to give preferential treatment to those relying on past free movement rights that have been abolished. This is what a global immigration system means. However, I respect the points that my right hon. Friend the Member for North Thanet (Sir Roger Gale) has made to me, and, as with other things, we will continue to keep this area under review.

Lords amendment 3 provides for children in care and care leavers who lose their free movement rights to obtain indefinite leave to remain. I pay tribute to the noble Lord Dubs, who sponsored this amendment in the other place. The Government agree on the importance of protecting the rights of children in care and care leavers, and other vulnerable groups, as we end free movement. I have also appreciated the points made in a letter I replied to from my hon. Friend the Member for East Worthing and Shoreham (Tim Loughton). We are providing extensive support to local authorities, which have the statutory responsibilities for this cohort, to ensure that these children and young people, like other vulnerable groups, get UK immigration status under the EU settlement scheme. This support includes the settlement resolution centre and grant funding of up to £17 million, to cover last year and this year, to organisations across the UK to support all vulnerable groups in applying to the scheme.

A survey of local authorities by the Home Office has so far identified fewer than 4,000 children in care and care leavers eligible for the EU settlement scheme, with over 40% of those having already applied for status under it, and with most of those who have applied having already received an outcome of settled status. The Government have made it clear, in line with the withdrawal agreement, that where a person eligible for status under the EU settlement scheme has reasonable grounds for missing the 30 June 2021 deadline, they will be given a further opportunity to apply. We have also made clear that those reasonable grounds will include where a parent, guardian or local authority does not apply on behalf of a child. Therefore, if a child in care or a care leaver misses the deadline, they will still be able to obtain lawful status in the UK. There is no time limit to what may be reasonable, so an application today from a person who is a child aged eight would be reasonable if they discovered at age 18 that their local council had not applied for them.

The Government are not, therefore, persuaded of the need for this amendment. Applicants under the age of 21 are already granted immediate settled status under the EU settlement scheme where a parent has that status. The idea of applying such a provision retrospectively runs counter to the general operation of the immigration rules.

[Matt Rodda (Reading East) (Lab)]

Will the Minister give way?

[Kevin Foster]

I have to make progress.

I will now turn briefly to Lords amendment 4, which relates to family reunion and unaccompanied asylum-seeking children. I understand the important issues that this amendment seeks to address, and confirm the Government’s commitment to the principle of family unity and supporting vulnerable children. The Secretary of State for the Home Department, my right hon. Friend the Member for Witham (Priti Patel), recently announced at the Conservative party conference our intention to reform our broken asylum system to make it firm but fair, and we intend to bring forward legislation next year to deliver on that intention. Our reformed system will be fair and compassionate towards those who need our help by welcoming people through safe and legal routes; it will, though, be firm in stopping the abuse of the system by those who misuse it— especially serious or persistent criminals—simply to prevent their removal from this country.

We have a proud record of providing safety to those who need it through our asylum system and resettlement schemes, and we have granted protection and other leave to more than 44,000 children seeking protection since 2010. The UK continues to be one of the highest recipients of asylum claims from unaccompanied children across Europe, receiving more claims than any EU member state in 2019 and 20% of all claims made in the EU. However, now we have left the European Union, it does not make sense in the long term to have a different set of provisions for those in fundamentally safe and democratic countries than for those in the rest of the world, unless those provisions are based on effective reciprocal agreements relating to returns and family reunification. We have made a credible and serious offer to the EU on new arrangements for the family reunion of unaccompanied asylum-seeking children, and it remains our goal to negotiate such an arrangement, but the UK does provide safe and legal routes for people to join family members in the UK through existing immigration rules, all of which are unaffected by our exit from the European Union, such as the provisions under part 11 of the immigration rules.

Lords amendment 5 would require the Secretary of State to offer a physical document free of charge to any EEA citizen who applies for leave or has been granted leave under the EU settlement scheme. As announced earlier, this amendment engages financial privilege, so I will not debate it specifically, but I will point out that the House has considered that proposal on a number of occasions, and has declined it each time. We have made such a move across our migration system: in particular, we are looking at the British national overseas visa route, which will also use an electronic system. Again, that is similar to other countries: for example, Australia has had such a system since 2015.

[Dr Julian Lewis (New Forest East) (Ind)]

Will the Minister give way?

[Kevin Foster]

I am going to have to start making some progress.

Lords amendments 6, 7 and 8 relate to detention time limits—an issue that is not directly relevant to the purpose of the Bill, which is to end free movement. In addition, at the heart of the Bill is a commitment to a global system and equal treatment of immigrants of all nationalities as we exit the transition period. On the broader point, imposing a 28-day time limit on detention is not practical and would encourage and reward abuse, especially of our protection routes. No European country has adopted anything close to a time limit as short as that proposed in these amendments, and comparable nations have not gone down this route at all.

However, I recognise the point made by those who are concerned about this issue. As I said when we discussed a very similar amendment tabled on Report, we want to reform the system so that it makes a quicker set of decisions, and for our position to be clear that detention is used when there is no alternative, or when there is a specific need to protect the public from harm.

[Mr Andrew Mitchell (Sutton Coldfield) (Con)]

My hon. Friend will be aware that many of us across the House are concerned about the fact that there is not a limit. He is absolutely right that what is required is an international convention and international agreement on this issue. Nevertheless, for some people to be detained indefinitely having committed no crime is a matter of concern, and I would like my hon. Friend’s commitment that he will keep this matter under review within the Home Office.

[Kevin Foster]

I thank my right hon. Friend for his constructive intervention. We will absolutely keep it under review. I gently say that it is not possible to detain someone indefinitely as such; they can apply for immigration bail, and we have to meet a test that says there is a reasonable prospect of their removal. My right hon. Friend will appreciate that, similarly, there are instances where it is out of the Home Office’s hands, or even this jurisdiction’s hands, and we cannot immediately remove someone by a particular day.

[Mr Alistair Carmichael (Orkney and Shetland) (LD)]

Will the Minister give way?

[Kevin Foster]

Very briefly, because I am conscious of the number of Members waiting to speak.

[Mr Carmichael]

Last year, the Government had to pay out £7 million to 272 people who were wrongfully detained. Was that good value for money?

[Kevin Foster]

I can reassure the hon. Gentleman that the law on detention is very similar to that pre-2015, when he was in the Cabinet. Immigration detention is part of our rules, but we have been reducing its use over recent years; again, it should be a last resort when other methods cannot be used. However, I say again with regret that introducing a 28-day limit would allow people to exploit the system and would actually run contrary to our ability to run an effective system.

I turn to Lords amendment 9. I appreciated the chance today and over the weekend to have significant conversations on this subject with my right hon. Friends the Members for Maidenhead (Mrs May) and for Staffordshire Moorlands (Karen Bradley), who have had a strong passion and commitment to this area over a long period. Lords amendment 9 would require arrangements to be made in the immigration rules for the granting of leave to remain to confirmed victims of modern slavery who are EEA citizens, in specified circumstances. We believe that the amendment is unnecessary, for reasons that I will briefly set out.

Currently, confirmed victims of modern slavery who are foreign nationals from non-EEA countries and who do not already have immigration status are automatically considered for a grant of discretionary leave to remain. By “automatically” I mean they do not have to apply for it. Our national referral mechanism arranges for that consideration if, after a decision has been reached, there are conclusive grounds to believe that someone is a victim of modern slavery. EEA citizens are not automatically considered in that way, as many are likely to be exercising free movement rights and therefore do not require a grant of discretionary leave under UK immigration rules. They may, however, apply for discretionary leave if they wish.

However, to address some of the points that have been made, following the end of free movement, EEA confirmed victims who do not already have permission to stay in the UK, for example though our EU settlement scheme, will be treated in the same way as other foreign national victims and therefore receive automatic consideration for a grant of discretionary leave. The published policy will be amended to make that clear beyond 1 January 2021; the recent publication reflects the guidance that needs to be followed today, with free movement rights still in place.

[Sir Iain Duncan Smith (Chingford and Woodford Green) (Con)]

My hon. Friend knows that I spoke overnight to the Home Secretary and we agreed that this was an anomaly and needed to be sorted, so I am pleased that he now commits to doing it. Will he also, however, commit to having a full and proper set of discussions with Lord McColl, me and others about the possibility of introducing modern slavery victims support legislation to iron out many of these anomalies?

[Kevin Foster]

I thank my right hon. Friend for his constructive intervention. Yes, certainly; I am more than happy to engage with him about how we can look at this process. He will realise that it is not just in this area where there has traditionally been a difference, because EEA nationals have freedom of movement rights, so it would be odd to grant them status under immigration rules, but I am certainly happy to have that conversation. I also reassure Members that we would consider someone’s being held as a modern slave as reasonable grounds for a late application to the EU settlement scheme. I say gently that it would be unhelpful to have two very similar sets of criteria, one under the immigration rules and one under policy, so we do not accept Lords amendment 9.

Having been through the more contentious areas, I hope that Members support Lords amendment 11, which was introduced in reaction to feedback in the other place. I hope that Members accept the reasons I have outlined why the Government cannot accept the Lords amendments that we ask the House to disagree with, but I hope that they have a sense of the Government’s commitment to the issues raised.

[Bambos Charalambous (Enfield, Southgate) (Lab)]

It is a pleasure to be at the Dispatch Box for the return of this incredibly important piece of legislation. I thank peers in the other place for their detailed work on the Bill. We welcome the amendments that have been secured, most of them with significant majorities; several of the improvements before us today demonstrate cross-party support.

Lords amendment 1 would require the Secretary of State to commission and publish an independent assessment of the impact of ending free movement on the social care sector. The Government’s intransigence on this matter has been beyond disappointing. This Bill has been an affront to those migrant workers working on the frontline in social care. To have clapped them on a Thursday night and then told them that they are unskilled and therefore not welcome on a Monday is both disrespectful and shameful.

Members on both sides of the House have witnessed the vulnerabilities across our health and social care sector, which, despite the best efforts of its dedicated workforce, has been pushed to the limits over the course of the pandemic. Unison, the UK’s largest trade union, represents our dedicated public sector workers, including social care workers, across the UK. We have worked closely with Unison, which has supported and represented workers throughout the pandemic. With its in-depth knowledge of the sector and foresight, it has articulated its vision of social care in its “care after covid” campaign to address the fault lines that were so exposed throughout the last six months. To propose a Bill that will make radical changes to the recruitment of social care workers without considering the impact is simply negligent and careless governance.

The Minister referred to the Migration Advisory Committee; in its recent report, commissioned at the request of the Home Secretary, it expressed concerns about the social care sector and argued that if necessary funding and pay increases do not materialise urgently, it would expect the end of freedom of movement to increase the pressure on the social care sector. That would be particularly difficult to understand at a time when so many care occupations are central to the covid-19 pandemic frontline response.

These remarks should unsettle the Government and spur them into action, and I fully expect that if the Government do not listen, on the day that the new points-based immigration system is implemented we will still be deeply entrenched in the battle against coronavirus. If we do not do our due diligence by adopting this amendment, the Bill is set to undermine social care recklessly at a time when we can least afford it, so we urge the Government to reconsider their position, commission the impact assessment and understand the impact of the Bill on the social care workforce, on visas and on the consequences for recruitment, training and staff terms and conditions.

Amendment 4 would ensure there are safe refugee family reunion routes after Dublin III ceases to be available in the UK following the end of the UK-EU transition period. I want to place on record my thanks to the brilliant and inspirational Lord Dubs for his tireless work and leadership on this amendment in the other place.

A great deal has been said about immigration over the summer and we on the Labour Benches want in the strongest possible terms to distance ourselves from the Home Secretary’s dangerous rhetoric and to thank those lawyers who play such an important role in ensuring that the UK is upholding its international and legal obligations. The amendment demonstrates the future for one of the safe and legal routes we have all advocated for over the summer.

The Dublin III regulation is for family reunion and represents legal routes to safety from Europe for children seeking to come to the UK. Family reunion under Dublin III is currently the only legal pathway to reach the UK from the EU for the purposes of claiming asylum. It will no longer apply after the transition period. If we do not seek to address this issue, I fear that we will see more images of people making precarious and life-threatening journeys on dinghies across the channel.

The Government will say that they have a draft proposal for family reunion; however, it is apparent that their proposal is woefully inadequate. The proposals remove all mandatory requirements to activate family reunions. They remove the child’s right to appeal against refusal, and some children would not be covered by the narrower definition of family which Parliament passed in a 2017 Act.

Other safeguards have been removed, too, such as deadlines. According to one non-governmental organisation, 95% of people helped by NGOs to obtain a right of passage would fail the test proposed by the Government. Existing immigration rules also fail to cover this specific area, and therefore this amendment gives Parliament a chance to enshrine in law the basic principle of family reunion.

This issue is incredibly salient and our thoughts are still fixed on the suffering and horrors caused by the fire at the Moria refugee camp in Lesbos. The scale of that tragedy could have been minimised.

We all heard the pleas before the incident to the Greek Government for help with numbers at the camp, yet the calls were ignored by the people in power.

It is worth noting that the number of people who have come in under Dublin III has historically been very small. Up to 2014, there were 10 or 11 a year, and since 2016, a little over 500 have come in under it. We hear about the Government’s proposed fairer borders Bill on asylum, but those children cannot wait. We are asking the House to use its power to give transformative opportunities to innocent children who, through no fault of their own, have found themselves fleeing persecution and destitution.

--- Later in debate ---

[David Simmonds]

Like my hon. Friend the Member for West Bromwich West (Shaun Bailey), I am very much of the view that the Bill has the purpose of replacing the arrangements we had in the European Union. I will not be supporting the amendments this evening, because I feel very much that the issues highlighted are principally about matters of management and administration of the process, rather than operation of law. That said, I hope those on the Government Front Bench are paying close attention to what has been said across the House this evening about a number of particular points. The two I would especially like to draw attention to are: the circumstances of undocumented children in the care system, and the point about documentary evidence in the hands of those who are applying for settled status.

I thank my hon. Friend the Minister for his time and attention to the first issue relating to undocumented children. However, we heard Members across the House emphasise the vulnerability of those in the care system to finding themselves at risk of a future Windrush situation because of the retroactive nature of some elements of the applications for settled status. While it is welcome that the Home Office accepts that people will be able to apply in effect out of time—that is a positive thing—it does not address the fundamental problem that a local authority with care responsibilities, or indeed a family member with a special guardianship order for a young person, would face if they do not have the necessary documentation proving that young person’s nationality in obtaining settled status for them in the United Kingdom. Although I think we recognise that that group is a relatively small group, it is vital that their needs are addressed to ensure that we do not, in 10 or 15 years’ time, find ourselves regretting that we did not take more action on that tonight.

Another point which arises from that of course is the one raised by my hon. Friend the Member for East Worthing and Shoreham (Tim Loughton), which is the significant cost of this. Local authorities paying that cost to the Home Office is simply a cost shunt from one taxpayer to another taxpayer, and I would urge the Home Office to give consideration to ensuring that, for children in care, those costs are either waived or substantially reduced to remove a final barrier.

I will finish on this point, time being tight. A number of Members have raised the issue of documentary evidence in the hands of the citizen. We have seen many examples in all different walks of life where we would have legitimate concerns about whether the digital record keeping, of all kinds of organisations and for all kinds of reasons, is sufficiently accurate. We all hear, as Members of this House, from our constituents about the issues that that causes them in their day-to-day life. For people who may be refugees, who may be facing a degree of digital exclusion or for whom English is not a first language, that is an even greater problem. I am reassured by the message from the Home Office that everybody who makes an application will receive a written response, with a number on it, that provides evidence of the status that has been granted, but I think it would be useful for all of us to hear a bit more in due course from the Home Office about how it proposes to ensure that that is something people appreciate the value of, and that it is kept and preserved so that the evidence is there for the future.

The UK has much to be proud of in the way that we respond to immigration. It is right that we keep this tight to the matters under consideration, but I trust that colleagues have heard the concerns across the House and that the Minister will address them in his summing up.

[Kevin Foster]

This has been an interesting and fascinating debate, which has mostly been reflective and reasonable. I hope colleagues will appreciate though that, in the seven and a half minutes I have, I will not be able to respond to every single point that has been raised.

I will start with the themes, and we have again had a lengthy debate on social care. I was pleased to hear the SNP spokesperson, the hon. Member for Cumbernauld, Kilsyth and Kirkintilloch East (Stuart C. McDonald), say he agreed with the MAC. He will recall the evidence that Brian Bell gave to the Public Bill Committee that considered this Bill, and I am glad to hear that he now agrees with that. I would say, however, that we are being clear again that the MAC has been free to make its own reviews and commissions, and to produce an annual report that can then be considered by this House. It will be able to do that independently, and it will almost certainly provide commentary on social care. To set up a body that is independent and free to make its own decisions, and then tell it all the reviews it needs to do does not make a great deal of sense. Similarly, we are keen that it is there, and it can be lobbied, including by the shadow Minister, the hon. Member for Enfield, Southgate (Bambos Charalambous), about areas that it may wish to consider of importance. As we keep on saying, if the lesson people have taken from the last few months is that the solution to social care is to give employers an unlimited opportunity to recruit at the minimum wage, they have really taken the wrong lesson.

Moving on to the issues of modern slavery, we have again had some impassioned speeches and some very well-informed ones, particularly from my right hon. Friends the Members for Staffordshire Moorlands (Karen Bradley) and for Chingford and Woodford Green (Sir Iain Duncan Smith). Again, I would say that we have obviously made the changes to guidance. We will bring forward those changes to guidance and have them in place on 1 January. He will appreciate why we will not do it before then, because people will still have free movement rights and we should respect that. But certainly we are happy to engage more widely around the position on what we can do and where we can ensure that the support these victims need is available to them, particularly as we remove the distinction between EEA victims who have free movement rights and non-EEA victims who do not, subject to the caveat that we will of course always look to see if a victim of modern slavery is eligible for the European settlement scheme.

Turning to the issues of family reunion and resettlement, I again point out that there are provisions under the UK’s migration rules that, certainly under part 8, go wider than purely affecting parents with children. We are in negotiations with the European Union, and the Under-Secretary, my hon. Friend the Member for Croydon South (Chris Philp), is actively looking at what we can do. If we can get bilateral arrangements, then fantastic, but does it make sense in future to have a different set of rules for people in EEA countries versus those in the rest of the world? That is the core of this Bill, which is about free movement rights. If there is an agreement—a reciprocal arrangement—in place, then that would go beyond what we have as our baseline rules. Now that we have left the European Union, with the transition period and free movement coming to an end, whatever settlement we have in future—there is a debate to be had in this House about our asylum system, and we will have it at more length in the near future—it does not make sense to have a distinction between someone whose position is in the EEA and someone whose position is, for example, in Turkey, unless there are reciprocal arrangements that justify that difference of treatment.

The issue of children in care has rightly been a subject of some debate. I hear the point that has just been made about identification. Let me be clear: EUSS does not require a passport or an ID card; alternative measures can be used to prove entitlement through documentation. However, that issue is not particularly caused by EUSS because today you would need the same challenge to identify whether someone is a UK national, an EEA national or a rest-of-the-world national, given the impact that that has on free movement rights. However, we are happy to continue working with local authorities to see how we can help them to tackle these issues, and to work with high commissions to ensure that those who deserve their status receive it.

As we have said, there is a range of provisions around late applications and those who should make an application but do not. This is not just about children in care. We also include those under 18. If a parent does not make an application, and, at a later time, the child reaches the age of majority and they have to do a compliant environment check, for example, and discover that it has not been made, we would see that as a reasonable ground for a late application. As touched on, there is no specific time limit to that provision.

On detention, we have outlined our arguments. I am conscious that there are strong feelings on this in the House. We all want to see people swiftly moved out of detention and, if they have no right to be in this country, to be removed from it. We want detention to be used as a last resort. Its use has been declining over the past few years. That is partly because we cannot guarantee that a country in sub-Saharan Africa, for example, will issue us with travel documents for the person to be returned to it within the timeframe. In particular, we have to be clear that there is no ability to put someone in detention for no reason. We have to have a lawful basis for doing so, and that can only be where there is a reasonable prospect of removal or a threat to the public—although I accept that only a very small number of people are serious foreign national offenders.

On physical documentation, we are moving towards more digital statuses. For example, we are looking to see where we can use public services to automatically check status. In recent months, we have seen the advantage of EU citizens who already have EUSS—although they are not yet required to have it—being able to share that online and digitally when doing a range of checks, at a time when a face-to-face meeting to do so may be a lot less desirable. As touched on, it will not just be EEA nationals with status under EUSS who will be using digital status—we also intend the route for British nationals overseas, who will also be moving to digital. As touched on, countries such as Australia have had a system like this in place for some time. It was interesting to hear the hon. Member for Bath (Wera Hobhouse) talk about the idea of digital passports. We are starting to look to the future where people may well travel on their biometrics and with digital identities rather than travelling purely on passports—although that is probably a few years away given that it would require technology being reciprocated in other nations.

I particularly enjoyed some of the speeches. My hon. Friend the Member for Newcastle-under-Lyme (Aaron Bell) hit the nail on the head: this Bill is about delivering a manifesto commitment. This Bill is about ending free movement, as voted for in the general election and in the referendum back in 2016. It is not there to have the whole range of debate around immigration, but I respect the fact that people took the chance to do that. This Bill is about delivering a manifesto commitment, and that is why we should remove these amendments, which do not go to that core goal.

[Mr Deputy Speaker (Mr Nigel Evans)]

Order. Before I put the Question, I would like to say that I am expecting some Divisions this evening, and there is a distinction between “should” and “must”. When I say “should”, it is guidance; when I say “must”, you must do it. If there is a Division, those sitting on the Front Benches must leave by the door in front of me; everybody else must leave by the door behind me. It is not optional. Please keep social distancing throughout; if you can touch the person in front of you, you are standing too close.

Registers of Births and Deaths Bill

Kevin Foster Excerpts

2nd reading & 2nd reading: House of Commons
Friday 16th October 2020 Commons Chamber

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

It is a pleasure to speak on behalf of the Government in the debate. Like the hon Member for Croydon Central (Sarah Jones), I was feeling slightly youthful when I heard about my right hon. Friend the Member for Sutton Coldfield (Mr Mitchell) presenting a private Member’s Bill in 1991. I felt even more youthful when the hon. Member for Croydon Central said she was revising for A-levels in 1991, because I was in my first year at secondary school. Then came the speech of my hon. Friend the Member for Hyndburn (Sara Britcliffe).

I congratulate my right hon Friend the Member for Sutton Coldfield on bringing forward his Bill on birth and death registration. The Government wholeheartedly support it. I thank him for raising the profile of the need to reform the way in which births and deaths are registered in future by not only removing the requirement for paper registers and moving to digital methods of registration but allowing us to remove some of the requirements that are now rather antiquated and, as we have seen in recent times, have had an impact. I also thank all hon. Members for their contributions. I particularly look forward to the detailed and forensic scrutiny that my hon. Friend the Member for Christchurch (Sir Christopher Chope) will give to the Bill and any subsequent regulations, having had on many occasions the pleasure and the benefit of hearing his scrutiny of such Bills on a Friday in this Chamber.

It is an important issue. The current system of registering births and deaths is wholly outdated, based on a paper process first set up in 1837. We do need to move forward. As has already been said, an electronic register—the registration online system—is already in place and has been used by registrars to register births and deaths since 2009 in parallel with the paper registers. However, due to the requirements in primary legislation, a paper record of the event must also be kept. That is duplication of effort for registrars. We wish to rectify this anomaly, which can be done only by amending primary legislation.

I reassure the House that the RON system is mature and the infrastructure is well constructed to resist failures. It has high levels of resilience, incorporating multiple back-up systems at the application, hardware and data levels, and robust measures are in place to protect the data that it holds. It is perhaps worth noting that civil partnerships—a more modern concept, created in 2005—are all held in an electronic form of register, given that they were created in the modern era.

As many Members have said, the covid-19 pandemic has clearly highlighted the restrictions and problems with current legislation and the urgent need to be able to offer more flexibility in how births and deaths are registered in the future and remove the requirement for face-to-face registration. The births and deaths legislation does not reflect a modern digital Britain, and it is high time we updated it, which the Bill will do.

The changes proposed by the Bill mean that birth and death entries would be held in a single electronic register rather than in thousands of register books, which registrars are required to keep securely in a safe. That will make the system of registration more secure, more efficient and far simpler to administer in the future. It will also make it far harder for criminals to tamper with records or create false identities. While there has been some talk about the security of digital, we should remember that paper is vulnerable to being forged and enhanced electronic systems can improve the security of the registration process.

I would like to reassure the House that all the existing paper birth and death registers dating back to 1837 will continue to be held in perpetuity by each registration district. It is from those records that historic birth and death certificates will continue to be issued. In reference to the point made by my hon. Friend the Member for Wolverhampton North East (Jane Stevenson), we are looking at how we can make them increasingly more available online, given that they are a rich historical source.

As touched on, the Bill also removes the administrative processes of quarterly returns, with registers having to be submitted to the superintendent registrar. That again will help to ensure that we have a more efficient system, and that we no longer have a bureaucracy that might have suited the early 19th century but does not suit modern Britain. With the move to an electronic register, it will no longer be necessary to have these types of returns, because following the registration of a birth or death the superintendent registrar and the registrar general will have immediate access to the entries without having to complete the quarterly returns process.

The Bill includes provisions for regulations to be made to provide that a duty to sign the birth or death register is to have effect as a duty to comply with specified requirements. If an informant complies with those requirements, they are to be treated as having signed the register, and to have done so in the presence of the registrar. For example, the regulations may require a person to provide specified evidence of their identity, and it may well allow the opportunity to register from home.

As touched on by some Members, registering a death can be difficult. At the moment it involves making an appointment, and in some cases having to travel quite significant distances, in a rural county, for what can be quite a sad and upsetting moment. It is far better to provide that someone can do it at home in their own time, perhaps with a cup of tea to hand, rather than feeling that it is very much an administrative process. Every death registered is someone—I remember doing it with my own mother. It is someone; it is not an administrative process. Again, I firmly believe that this provision will make it a much better experience for people at a very difficult time in their life.

As touched on, the regulations will be made using the affirmative procedure, requiring them to be laid before, and approved by, both Houses of Parliament, and providing Members of both Houses with an opportunity to discuss their content. I appreciate that not everyone will be able to demonstrate that they have the evidence prescribed in the legislation. We will therefore also include a discretionary power to enable a birth or death to be registered where appropriate.

As we have said throughout, this is about bringing in a modern system of birth and death registration, and I am very grateful to my right hon. Friend the Member for Sutton Coldfield for using this opportunity to present such a worthy Bill. It is high time that we had a modern system. We have seen in recent times the severe limitations that the current primary legislation presents, and it is time to have a system that allows people to be treated as customers, rather than going through a process set out in primary legislation that is now outdated. The Government therefore fully support the Bill’s Second Reading and hope that the House will too.

Draft Citizens' Rights (Restrictions of Rights of Entry and Residence) (EU Exit) Regulations 2020 Draft Citizens' Rights (Application Deadline and Temporary Protection) (EU Exit) Regulations 2020 Draft Citizens' Rights (Frontier Workers) (EU Exit) Regulations 2020

Kevin Foster Excerpts

Wednesday 14th October 2020 General Committees

[The Chair]

Before we begin, I remind Members about the social distancing regulations. The spaces should be marked. Hansard colleagues would be very grateful if you could send any speaking notes to [e-mail].

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

I beg to move,

That the Committee has considered the draft Citizens’ Rights (Restrictions of Rights of Entry and Residence) (EU Exit) Regulations 2020.

[The Chair]

With this it will be convenient to consider the draft Citizens’ Rights (Application Deadline and Temporary Protection) (EU Exit) Regulations 2020 and the draft Citizens’ Rights (Frontier Workers) (EU Exit) Regulations 2020.

[Kevin Foster]

It is a pleasure to serve under your chairmanship, Ms Fovargue.

Since the referendum in 2016, the Government have prioritised the protection of European Union, other European economic area and Swiss citizens who have made the UK their home. As we have repeatedly said, they are our friends and neighbours; we want them to stay. Parliament passed the European Union (Withdrawal Agreement) Act 2020 to protect their rights. The Government established the EU settlement scheme to provide a simple means by which they and their family members can obtain the status they deserve and remain living and working in the United Kingdom. I am pleased to say that more than 4 million applications have already been made to the scheme, and almost 3.8 million grants of status have already been made. That is a remarkable achievement. It is the biggest immigration scheme in UK history.

The Government have now brought forward three statutory instruments that further deliver their commitment to protect citizens’ rights. They give effect to the UK’s obligations to EU, other EEA and Swiss citizens—for simplicity, I will simply refer to them all as EEA citizens—under the EU withdrawal agreement, the EEA European Free Trade Association separation agreement and the Swiss citizens’ rights agreement. The instruments are made under powers in the 2020 Act, and I will briefly explain the purpose of each.

For simplicity, I will refer to the draft Citizens’ Rights (Application Deadline and Temporary Protection) (EU Exit) Regulations 2020 as the grace period SI. The Government were pleased to share an illustrative text of this statutory instrument with both Houses in early September. Its purpose is twofold. First, it establishes the deadline of 30 June 2021 for applications to the EU settlement scheme by EEA citizens and their family members who are resident in the United Kingdom by 31 December 2020—the end of the transition period.

Secondly, the instrument saves relevant free movement rights for EEA citizens and their family members who are lawfully resident in the UK at the end of the transition period but have yet to obtain status under the EU settlement scheme. That is because, at the end of this year, the Immigration (European Economic Area) Regulations 2016 will be revoked, subject to Parliament’s agreement to the Immigration and Social Security Co-ordination (EU Withdrawal) Bill. The grace period refers to the time between the ending of free movement and the deadline for applications to the scheme.

The SI also saves existing relevant rights for those who make the EU settlement scheme application before the end of the grace period until the application is finally determined, if it is still being considered as the grace period ends on 30 June 2021. It makes some modifications to the EEA regulations to reflect the end of free movement, as well as recent case law that remains binding on the UK. It does not alter the current eligibility criteria for the EU settlement scheme, which is fundamentally based in UK law, as that is a status under UK immigration law. The instrument has the effect of broadly maintaining the status quo during the grace period, with the result that there is no change to the way in which EEA citizens live and work in our United Kingdom.

[Alberto Costa (South Leicestershire) (Con)]

The Minister will know that for more than two years I have been championing the rights of EU nationals living in the UK and UK citizens in the EU. We now know that more than 5 million innocent people are affected by the UK’s decision to leave the EU. We all want to encourage EU nationals to register before the grace period deadline so that their rights are secured. Can the Minister reassure the Committee that the Home Office is making plans for those EU nationals with residence rights until the end of the implementation period who, for whatever reasonable reason, will not be able to register by the grace period deadline? Will the Home Office secure their rights?

[Kevin Foster]

The simple answer is yes. As my hon. Friend says, our main focus is on ensuring that people register before the deadline. We recently confirmed grant funding for 72 organisations, which will receive support to assist vulnerable people who need extra help to apply. We will, as I have said before, take a generous approach to what reasonable grounds are, and we will publish illustrative, not exhaustive, guidance. We are keen to take into consideration whether the individual circumstances in which a late application is made are reasonable.

I regularly cite the relevant example of a child in the care of a local authority that has the duty to make the application on their behalf. If the local authority fails to do that, and the person becomes an adult and realises that the application was not made for them, that would be seen as an eminently reasonable ground, because they were entitled to believe that the local authority would have done its duty and made the application on their behalf.

Moreover, there is no set time period for reasonable grounds. For example, in the case of a looked-after child, the Home Office accepts that it could be some time before they run into the problem. For the sake of argument, an eight-year-old child will become an adult in 10 years’ time and might discover when they go for their first job that the local council had not made the application 10 years ago. That would still be seen as a reasonable ground for a late application, because the child would not have known about it.

[Neil Coyle (Bermondsey and Old Southwark) (Lab)]

I commend the campaign by the hon. Member for South Leicestershire. The Government have provided some £17 million to grant-based organisations to identify those who are more vulnerable and to reach those affected. How many people have been reached so far? And how many others who need this safeguard and protection do the Government think have not been reached?

[Kevin Foster]

It is impossible to give an exact number because we will have free movement until 31 December. People can arrive in the United Kingdom tomorrow and gain free movement rights and eligibility to apply to the European settlement scheme. We have been monitoring performance with the grant-funding organisations. Performance has been strong. I visited one in Southwark recently. I was pleased to see the work it was doing with the Spanish-speaking community in Southwark.

Overall, the scheme has had just over 4 million applications. In the early part of next month we will publish the next set of numbers up to the end of September, which will break it down in more detail. The grant-funding organisations have been doing quality work. We are loth to go purely on numbers because some of them work with people with incredibly chaotic lifestyles. For example, one in Scotland works with the homeless. Doing it purely by numbers would not necessarily reflect the quality of the work they have done in supporting the vulnerable and ensuring that they have an EU settlement scheme application.

As has been touched on, we will have an illustrative list of reasonable grounds as to why an application might be made late. We will judge each individual case. In some cases, there will not be a time limit. We are keen that each circumstance will be looked at to see whether there is a reasonable ground. My example of the child in care will probably be among those cases with the longest periods, because it would be reasonable for them not to have realised that the council had not made the application on their behalf. If they are eight years old today, it could be 10 years before they engage in the issue as an adult and they may need to present certain things under the compliance environment.

Finally, I have sent around a letter—I apologise to Opposition Members for it coming not long before the Committee—following a constructive conversation yesterday with a number of Members of both Houses of Parliament about the impact of some provisions on those who are here but not exercising a free movement right. We have extended to them the ability to apply to the EUSS by making the criteria under our domestic law residence and not exercising a free movement right regulation. We think it is right to be generous because some of these people have been in the UK for many decades, so that is the right thing to do rather than asking people to prove exactly which free movement right they are exercising. We had queries and have issued a letter setting out the Government’s position on the grace period, pending them applying to the European settlement scheme.

I turn to the draft Citizens’ Rights (Frontier Workers) (EU Exit) Regulations 2020, which protect the rights of EEA citizens who have begun frontier working in the United Kingdom by 31 December 2020 and wish to continue to do so. A frontier worker is a person resident outside the UK who comes to the UK for work. They continue to have the right to come here to work once freedom of movement has ended, for as long as they continue to be a frontier worker.

The regulations establish a frontier worker permit scheme to allow protected frontier workers to apply for a permit confirming their rights. Applications for frontier worker permits will be made online and will be simple, streamlined and, like other routes, free of charge. From 1 July 2021—the end of the grace period—frontier workers will be required to hold a valid frontier worker permit as evidence of their right to enter the UK on that basis.

The regulations set out the circumstances in which a protected frontier worker’s rights can be restricted and a permit can be refused or revoked, in accordance with the withdrawal agreement. They also provide protected frontier workers with statutory rights of appeal against decisions that restrict their rights, as well as a right of administrative review against certain decisions concerning eligibility. For the benefit of those Committee members who are wondering, I can confirm that Irish nationals who are in effect frontier working across the Irish border do not need to go through the process, given the status of Irish nationals under UK immigration law and their ability to live and work in the UK. The vast majority of frontier workers across the border in Ireland are Irish citizens, and that is the status they need to have. They would not be required to apply to that process.

I turn to the draft Citizens’ Rights (Restrictions of Rights of Entry and Residence) (EU Exit) Regulations 2020. The regulations give effect to the UK’s obligations under the withdrawal agreements that require the UK to consider conduct committed before the end of the transition period in accordance with the current EU thresholds when restricting the rights to enter and reside of a person protected by those agreements. These protections extend to people protected by the UK’s domestic implementation of those agreements.

Now that we have left the EU, it is right and important that parity is created for all foreign nationals in the United Kingdom. Currently, the test for whether a third-country national is liable to deportation is stricter and more specific than that for EEA citizens, which means it is easier to deport third-country nationals who have committed criminal offences. Similar distinctions exist for other types of restriction decisions—for example, a person’s exclusion from the United Kingdom.

We are required by the agreements to apply the EU thresholds of public policy, public security and public health, as set out in the EEA regulations, when assessing conduct committed before the end of the transition period, for the purpose of restricting a person’s right to enter or reside in the UK. The thresholds will apply to those protected by the agreements or the UK’s domestic implementation of those agreements, including those with status under the EU settlement scheme; those with an EU settlement scheme family permit; those who have a right to enter the UK for the purposes of a continuing course of healthcare; those who have entered the UK as a Swiss service provider; and those who are frontier workers. Conduct committed after the end of the transition period will be assessed according to the same criminality thresholds that apply to non-EEA nationals today, consistent with the agreements and creating a fair immigration system for all.

The Immigration and Social Security Co-ordination (EU Withdrawal) Bill contains provisions to revoke the EEA regulations at the end of the transition period, after which these regulations will come into force. To comply with our obligations under the withdrawal agreement, we need to save and modify relevant provisions in the EEA regulations in so far as they apply to deportation decisions. That will allow us to apply the current EU law thresholds to conduct committed before the end of the transition period. The regulations also provide that deportation decisions made in accordance with these protections continue to be appealable in accordance with the UK’s obligations. I can confirm that that will be when the conduct was committed, not when the conviction is received. To clarify, when the matter that is the subject of the conviction occurred will determine whether this applies.

To conclude, these three draft instruments implement the Government’s citizens’ rights commitments under the withdrawal agreement. I commend the regulations to the Committee.

--- Later in debate ---

[Kevin Foster]

I thank the two shadow spokespersons for the generally constructive nature of the points and the remarks they made.

I will start with the specific query about frontier workers. The main driver is that people will use an ID chip similar to the one we use for the EUSS system, and will be issued with a digital permit. There are some—for example, those who have used EEA identity cards, which do not have the ability to use the chip—who might be initially issued with a physical permit, if they cannot use the online ID checks. There is a slight difference there. The point we make is that this system is for those who are not resident. They have a particular reason for coming to the UK, and that is as a frontier worker. They can continue to do that for as long as they continue doing that job.

I stress that the vast majority of frontier workers coming to the United Kingdom live in the Republic of Ireland, drive into Northern Ireland and are Irish citizens, for whom this provision is irrelevant. Their rights are long-standing and are also guaranteed by clause 2 of the immigration Bill that is going through Parliament. We aim to remove the slight nuance in there around coming through the common travel area versus coming in from the European Union. We are removing that and making very clear in primary legislation the status of Irish citizens. That is part of the ambiguity. Some would have a physical permit, whereby they could not use the immigration ID checker. That relates to some of the documentation that they may be using lawfully to travel across the border each day.

Coming to some of the wider issues, I would again make the point that EUSS is a status under UK immigration law and it goes wider, as has been touched on, than EEA free movement regulations. Some people are not complying with EEA free movement regulations, although it is fair to say that they would not realise it. Until a year or two ago, probably even members of the Committee—other than, for example, the right hon. Member for East Ham, who is exceptional in his familiarity with the immigration system, going by our regular correspondence —would not instantly have known someone was here and working fully in accordance.

The point about people who are working therefore does not apply. They definitely comply with the EEA free movement regulations, because then there is not the requirement—under the free movement regulations, not the UK law EUSS—to have comprehensive sickness insurance, because our NHS treats people at the point of need and has a different basis from social insurance schemes on the continent, where people living or working there pay into them. This is an anomaly. It is not something that people will be particularly familiar with, so we have rightly adopted a far more generous position on the EUSS for those who are friends and neighbours, many of whom have lived here for some years.

In the grace period, an EEA or EU citizen who, for example, needs to do any of the compliant environment checks, such as on the right to rent a property in England or the right to work, will be able to present their EEA passport or their identity card and will not have to specify whether they have retained free movement rights or EUSS status, or are eligible for and applying for EUSS status. Again, during the grace period, until 30 June next year, people can still use the arrangements as they would today. No one will have lesser rights on 1 January 2021 than they have today, as far as what they can do goes. It is based on whether they effectively comply—but then there is the wider protection of the EUSS.

Of course, if anyone is concerned, I would make the obvious point that they should make an EUSS application immediately and get on with that, but there is no requirement, and there will not be an impact on life, until 1 July next year, when, for example, showing an EEA passport in a right to work check would not be enough. Someone would have to show that they had status either under the future borders and immigration system or under the European settlement scheme. That is when it is necessary to show more than just the documentation that must currently be shown, as an EU citizen. We could get on to some interesting nuances about particular entitlements, but what I have set out are rules that apply today and that do not change on 1 January next year.

That brings us to why the grace period is worded as it is, which is because, effectively, it is about retaining rights. We cannot really retain a right that free movement does not grant. Under UK immigration law—under the EUSS—we can grant something that is more generous or fair, or that gives status. By the way, there is absolutely no penalty and no difference in the type of status that will be granted to someone who falls into the category we are discussing, in relation to whether they applied on 31 December or on 30 January. There will not be a difference, or a period when they were not here, or anything like that, apart from working unlawfully, that we would hold against them. I want to make it clear—we shall respond to the groups as well—that regardless of where someone’s route to EUSS eligibility comes from, there will not be a penalty for not applying to the scheme before 31 December.

An example given to me was that someone who was just resident here on 31 December, and then applied for a job, would not create new free movement rights, because they would be beyond the end of free movement, but what would their employer’s position be? First, the employer would not have employed someone unlawfully. The reasonable grounds would be accepting an EEA passport or an identity card, as can be done today, as evidence of reasonable excuse, for evidence of a working entitlement in the United Kingdom. Then the employee could make an EUSS application by 1 July—and we will not be expecting employers to undertake retrospective checks of employment eligibility. That was one of the issues in the Windrush situation.

Coming on to Windrush, one of the main issues was of course that people were granted status under an Act of Parliament in 1973, but no formal record was taken—no category. To be fair, people were not asked for that; they were not required to do it. However, that meant that, as time passed and people became less familiar with legislation that had been passed, in some cases decades earlier, we ended up in the situation in question.

That is why, with the EU settlement scheme, we have been so keen that the system should be easy to access. People will register, and understand when they will need to have done it by, but there will be protections for those with reasonable grounds not to have applied in time. I think we would all agree about that. Again, we are not setting a particular timeframe in each instance. We will have an illustrative list; we will not have an exhaustive list. We will look to decision makers to consider whether something was reasonable in the circumstances, and of course applicants will have the ability to challenge those decisions as well.

So, although I take on board some of the points made by Opposition Members, I will be clear that people are not going to be left in any form of limbo in January next year. Of course, we encourage everyone to get their application to the EU settlement scheme in today. Nearly 3.8 million of our friends and neighbours already have status under United Kingdom immigration or via the EUSS, which guarantees their position in the United Kingdom beyond 1 July next year.

Many are already using that status. Particularly in recent times, it has been quite convenient to be able to share a digital status with an employer or a bank, because although people are not required to show it until 1 July next year, it can already be used, if, for example, someone needs to evidence entitlements or their identity for some of the checks that people, including British citizens, have to perform when they get a job or rent a flat.

With those comments, I conclude that, although I recognise the points that have been made, this measure represents a retention of rights. No one should feel that their ability to apply to the EUSS or their ability to live their life normally as they do today is affected; no one will have lesser rights in the UK in January than they do today. However, I urge the Committee to agree this measure.

Also, to be clear, the protections outlined in terms of citizens do not depend on the immigration Bill. The impact of that Bill was raised, and where it will impact is in repealing the provisions relating to free movement in UK law. Therefore, free movement does not exist beyond 1 January 2021, because it would be rather odd still to continue free movement in UK law when it was no longer reciprocated and had ended for UK citizens in the European Union.

Question put and agreed to.

Resolved,

That the Committee has considered the draft Citizens’ Rights (Restrictions of Rights of Entry and Residence) (EU Exit) Regulations 2020.

DRAFT CITIZENS’ RIGHTS (APPLICATION DEADLINE AND TEMPORARY PROTECTION) (EU EXIT) REGULATIONS 2020

Motion made, and Question put,

That the Committee has considered the draft Citizens’ Rights (Application Deadline and Temporary Protection) (EU Exit) Regulations 2020.—(Kevin Foster.)