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

Lord Bates Excerpts

Committee stage & Committee: 4th sitting (Hansard) & Committee: 4th sitting (Hansard): House of Lords
Wednesday 16th September 2020 Lords Chamber

I hope that, with those explanations, the noble Lord, Lord Dubs, will be happy to withdraw the amendment.

[The Deputy Chairman of Committees (Lord Bates) (Con)]

We have received a number of requests to speak after the Minister: from the noble Lord, Lord Kerr, the noble Baronesses, Lady Hamwee and Lady Lister, and the noble Lords, Lord Paddick and Lord Kennedy. I will call each Member in turn and then invite the Minister to respond.

[Lord Kerr of Kinlochard (CB) [V]]

I am grateful to the Minister for responding to my questions. I guess that I am rightly rebuked for suggesting that a relevant factor in considering what we should do about the victims of Lesbos is our reputation around the world. I suppose it is a case of déformation professionnelle. I used to be a diplomat and I am therefore keen on our trying to recover some of our lost reputation. Perhaps the Government—less the noble and learned Lord, Lord Keen—are less keen today. Perhaps they do not recognise the extent of the reputational damage. Anyway, I agree that that is not strictly relevant.

The Minister agreed that there is an emergency case for helping and an overwhelming humanitarian case for helping. But—I hope the Minister will forgive my saying so—she seems to be saying that we propose to do nothing at all about it. Everything that she cited—the money in April and the flights in July and August—took place before the fire on the island of Lesbos and before these 14,500 people, who are now sleeping rough, were displaced. If she accepts that there is a new urgent humanitarian case then it would be very good if the Government could do something about it.

I note that a number of people spoke on the same lines as me about this problem, so I hope the Minister will take back to Whitehall the idea that there seems to be a feeling in this House that we ought to be doing something to help the victims of Moria.

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[The Deputy Chairman of Committees (Lord Bates) (Con)]

I now call the noble Lord, Lord Dubs, to respond to the debate on his amendment.

[Lord Dubs (Lab) [V]]

My Lords, so many things have been raised in the debate that I shall be hard put to it to spend only a short time dealing with them. First, I am still concerned, because the Minister said that although she agreed with the sentiment, she thought Amendment 56 was unnecessary and might be counter- productive. I am not convinced that, next June, we will not see a large number of children who, as the noble Lord, Lord Kerr, said, have fallen through the crack and are undocumented, and nothing much will be done for them. That is the concern. Short of repeating the point in this debate, we will be forced to keep asking Parliamentary Questions to find out whether all those children have been identified and had their status granted.

The Minister did not talk about the difference between pre-settled and settled status, but the thrust of the debate was that we must give people settled status otherwise they are still left in limbo and a state of uncertainty.

I would like to feel that the Home Office will redouble its efforts to make sure that the amendment is unnecessary, but I am bound to say that I am not that hopeful. I fear that we will have to go on pressing the Government as to where we have got. I find that a bit disappointing, despite the fact that the Minister’s sentiments were very much in support of the aim of the amendment.

Turning now to some of the specific comments, I am grateful to all noble Lords who contributed to the debate. I particularly welcome the comments on Moria made by the noble Lord, Lord Kerr. I was going to raise this but did not know whether I should at this point. On the other hand, by the time we get to Report, when this issue will come up, another two or three weeks will have gone by. It is such an urgent matter than I can only press the Minister that we can do a bit more than we are doing. We cannot do everything. All we should do is act in concert with other EU countries, even if we are not part of the scheme, and say, “Look, we’re going to play our part in helping.”

We have done something already, of course—before the fire in Moria—but the Greek Government appealed for help from all countries. We are friendly with the Greek Government; we have got an agreement with them. The least we can do is say that we will take some more children, especially the ones who can reunite with their family here.

I was concerned by the Minister’s comment that Dublin III will be operational until the end of December. Of course it will be, but we are worried about what will happen after then. We are concerned that there will be no safeguards unless the Government act on the amendment that we discussed the other day, which is to say that we will negotiate to continue the arrangement long after we have left the EU. I fear that that is not the Government’s position; I would like to feel that it were. There is a real gap here in what the Government are doing, and I am disappointed. We will come to the end of December and there will be children with relatives and family here who will no longer have the right to come here.

Having said that, I am grateful to the Minister and the other noble Lords who contributed to the debate on this amendment. We will have to watch and see. If the Government are as good as the Minister’s word—that is a big statement—maybe it will all get sorted by June next year. I would like to think so, but at the moment I am still doubtful.

I beg leave to withdraw the amendment.

Amendments 57 to 61 not moved.

[The Deputy Chairman of Committees (Lord Bates) (Con)]

We now come to the group beginning with Amendment 62. I remind noble Lords that anyone wishing to speak after the Minister should email the clerk during the debate. Anyone wishing to press this or any other amendment in the group to a Division should make that clear during the debate.

Amendment 62

Moved by

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[Baroness Williams of Trafford (Con)]

My Lords, I thank the noble Baroness, Lady Hamwee, for her amendment and my noble friend Lord Dundee, the noble Lord, Lord Dubs, and the noble Baroness, Lady Bennett of Manor Castle. I turn first to Amendment 62 from the noble Baroness, Lady Hamwee. I note that she has raised this amendment to probe the need to expand the UK’s refugee family reunion rules. I will address each part of the amendment in turn.

Paragraph (a) of the proposed new clause seeks to allow refugees to reunite with their dependent children under the age of 25, as long as they were under 18 or unmarried at the time their parents left their country. The refugee family reunion guidance is clear that where a family reunion application does not meet the requirements of the Immigration Rules, caseworkers must consider whether there are any exceptional circumstances or compassionate factors that may justify a grant of leave outside the Immigration Rules. To this end, particular reference is given in the guidance to the example of children over 18 who are not leading an independent life and would otherwise be left alone in a dangerous situation. I can confirm that this discretion is used to allow dependent adult children to reunite with their parents in the UK where appropriate.

Paragraph (b) of the proposed new clause relates to refugees sponsoring parents. The noble Baroness will know that the Government have been very clear on their established position on this issue, as we are very concerned that allowing children to sponsor their parents would lead to more children being encouraged—even forced—to leave their families and risk dangerous journeys to the UK. However, discretion can be applied where a caseworker feels that a refusal of entry clearance would breach Article 8 of the ECHR or result in unjustifiably harsh consequences for the applicant or their family. Furthermore, Appendix FM of the Immigration Rules already allows refugees to sponsor adult dependent relatives living overseas to join them where, due to age, illness or disability, that person requires long-term personal care that can be provided only by relatives in the UK.

Paragraph (c) of the proposed new clause relates to refugees sponsoring dependent siblings under the age of 25, as long as they were under 18 or unmarried at the time their sibling left their country. I draw noble Lords’ attention to paragraph 319X of the Immigration Rules, which allows extended family, including siblings, to sponsor children to come here where there are serious and compelling circumstances. Again, consideration will also be given to any factors that might warrant a grant of leave outside the rules, where the rules are not met.

I hope this reassures the noble Baroness that there are vehicles within the existing policy framework to reunite the family members her amendment seeks to cover. An expansion of the policy could significantly increase the numbers who could qualify to come here from not just conflict regions but any country from which someone is granted protection. This would mean extended family members who themselves do not need protection being able to come here, which risks reducing our capacity to assist the most vulnerable refugees.

On numbers, I highlight that the UK has now issued over 29,000 family reunion visas in only the last five years, with more than half of those issued to children—a substantial number that should not be underestimated.

I agree with the intention of compassion and humanity that motivates Amendment 64, proposed by my noble friend Lord Dundee. However, we do not support this amendment, which seeks to create a humanitarian visa for EEA and Swiss nationals. It is unclear to me and the Government why those citizens have humanitarian needs that cannot be addressed by their own European country.

The Government have an excellent humanitarian record in assisting vulnerable people, including children. The UK is one of the world’s leading refugee resettlement states, resettling more refugees than any other country in Europe, and is in the top five countries worldwide. Since 2015 we have resettled more than 25,000 refugees, around half of whom have been children.

Once we have delivered our current commitments under the vulnerable persons resettlement scheme, we will consolidate our main schemes into a new global UK resettlement scheme. Our priority will be to continue to identify and resettle vulnerable refugees in need of protection, as identified and referred by the UNHCR. The focus of our humanitarian record is on those most in need, and I suggest that today’s amendment does not cover those most in need.

I turn to each proposed condition of the humanitarian visa in detail. Overall, it is unclear why, regarding the condition set out in subsection 3(a) of the proposed new clause, the UK should pick up healthcare provision for EEA and Swiss citizens, whether they are residing in their country of nationality or not, as these countries have excellent healthcare systems. However, our current discretionary leave policy allows us to grant leave to remain to individuals who do not qualify for leave to remain under the Immigration Rules but where there are exceptional or compassionate reasons for allowing them to remain in the UK, including on medical grounds and ill health.

The discretionary leave policy can, for example, address the needs of those who face a real risk of being exposed to a serious, rapid and irreversible decline in their state of health as a result of the absence of appropriate medical treatment in their home country. The policy also allows us to balance this care, and our international obligations under the ECHR, with the need to protect the finite resources of the NHS. The threshold for a person to be considered for discretionary leave on the basis of their medical condition is very clearly set out in our policy on medical claims and is intentionally high for this reason.

Furthermore, we are already dedicated to ensuring that vulnerable groups can access the NHS without charge. There are several groups applying for leave to remain in the UK who are exempt from the requirement to pay the immigration health charge, including asylum claimants and victims of modern slavery who apply for discretionary leave to remain. Those who are exempt from paying the IHC, or for whom the requirement is waived, are entitled to use the NHS generally without charge.

On the condition set out in proposed new subsection 3(b), the Government are committed to supporting vulnerable children. This amendment fails to recognise the safe and legal routes in the current immigration system for reuniting families, including the previously mentioned refugee family reunion rules, as well as Part 8 and Appendix FM of the Immigration Rules, all of which will remain in place at the end of the transition period.

The proposed amendment would also require the Government to create a new visa route for orphaned children who are EEA or Swiss nationals to come to the UK to be placed in local authority foster care where it is in their best interests. It is unclear why an orphaned child who is German, Italian or Greek, for example, should come to the UK on humanitarian grounds and be placed in local authority care here. These are safe European countries, and it is not appropriate for the UK to take children out of care in their own home countries and bring them here. Local authorities in the UK are already facing significant pressures, currently caring for over 5,000 unaccompanied asylum-seeking children, which is an increase of 146% since 2014.

On the condition set out in proposed new subsection 3(c), child dependants of those with leave in the UK are very well catered for in the Immigration Rules, which means that there is no need for primary legislation to create provision that already exists.

Turning to Amendment 79, I appreciate the noble Baroness’s intent behind the amendment, which seeks to create a means whereby, in the future, EEA and Swiss citizens will be able to join a spouse, partner, parent or a child in the UK who is either a British citizen or holds valid leave here, but without being subject to the current and established financial requirements for family migration.

There are a number of additional factors that I would like to turn to, which are also reasons for objecting to this amendment. I remind noble Lords that the minimum income requirement is based on in-depth analysis and advice from the independent Migration Advisory Committee. It did not find any clear case for differentiation in the level of the minimum income requirement between UK countries and regions. A single national threshold provides clarity and simplicity. Data also show that the gross median earnings in 2019 exceeded the minimum income requirement in every country and region of the UK. So it is true to say that the minimum income requirement is set at a suitable and consistent level and promotes financial independence, thereby avoiding burdens on the taxpayer and ensuring that families can participate sufficiently in everyday life to facilitate integration into British society.

In all family cases, the decision-maker will consider whether the Immigration Rules are otherwise met and, if not, will go on to consider whether there are exceptional circumstances that would render refusal a breach of Article 8 of the ECHR because it would result in unjustifiably harsh consequences for the applicant or their family. Each application is considered on its merits and on a case-by-case basis, taking into account the individual circumstances. The rules also give direct effect to the Secretary of State’s statutory duty to have regard, as a primary consideration, to a child’s best interests in making an immigration decision affecting them. In the future, British citizens and settled persons who want to be joined by family members who are EEA or Swiss citizens will benefit from these considerations without the need for Amendment 79.

Amendment 79 undermines the sound basis on which family migration to this country has been placed in recent years. It would circumvent the need for family migration to be on a basis whereby families are financially independent and able to contribute to the UK. It is for this reason that the income requirement was set out in the Immigration Rules. The Supreme Court has upheld this requirement as lawful and judged that it is not discriminatory. The amendment therefore seeks to contradict this ruling. There is no justifiable reason to avoid this requirement in the future by giving preferential treatment to family members based solely on their nationality. It is also unlikely to be lawful to do so.

The noble Baroness, Lady Bennett, asked if I had figures on the numbers who are affected, or who are projected to be affected. I do not have them on me. If we have them, I will provide them for her.

I hope that, on that basis, noble Lords are happy not to press their amendments.

[The Deputy Chairman of Committees (Lord Bates) (Con)]

I have received one request to speak after the Minister from the noble Lord, Lord Green of Deddington.

[Lord Green of Deddington (CB) [V]]

My Lords, I do not always agree with the Home Office, but I do commend the answers that the Minister has just given on these three amendments.

I want to make some brief comments on Amendment 79. As the Minister just pointed out, the present income threshold for a spousal visa is designed to ensure that those coming to the UK for family reunion have enough resources to play a full part in British life and do not become a burden on the taxpayer. That is surely a sensible approach. As she mentioned, this has been to the Supreme Court, which ruled the policy to be lawful. Indeed, far from removing the threshold, there are, in certain cases, strong arguments for raising it.

The Migration Advisory Committee has said that, on average, for the family income to cover the cost of all public services, a higher threshold is required: namely, £25,700, rather than the current level of £18,600—a difference of £7,100. Even that threshold would not be enough, it says, for a non-EU household to make a net contribution to public finances. For them, the figure would be £38,000 a year. We must have in mind the impact of changes to these rules on the taxpayer and the reaction that they may have to that.

Finally, it is perhaps important to note that a reduction in the threshold would run entirely contrary to the Government’s 2017 election manifesto, which promised to raise the level of the threshold. That, of course, has still not been done.

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[The Deputy Chairman of Committees (Lord Bates) (Con)]

I have received no requests to speak after the Minister so I call the noble Baroness, Lady Hamwee, to respond to the debate on her amendment.

[Baroness Hamwee (LD) [V]]

My Lords, I am grateful for that response. Of course, when one is dealing with something so technical, it is difficult to know whether one has thought of the right questions. I am therefore particularly grateful for the Minister’s offer of a meeting.

The noble Lord, Lord Rosser, mentioned Regulation 13. He asked what support would be given to people who need to prove their position. I marked that and, immediately afterwards, marked the comment at the end of the Explanatory Note that there is no full impact assessment for the instrument

“as no, or no significant, impact on the private, voluntary or public sector is foreseen.”

That made me think of the support that has had to be given to the voluntary sector in particular and the work for others in rolling out and attracting applications for the settled status scheme.

As I said, however, I thank the Minister. I suspect that this is not the end of our discussions on what I hope will not be set in stone until its impact is fully understood by everyone involved and until everyone is satisfied that it is a proper way to approach the matter.

I beg leave to withdraw the amendment.

Amendment 80 withdrawn.

[The Deputy Chairman of Committees (Lord Bates) (Con)]

We now come to the group consisting of Amendment 81. I remind noble Lords that anyone wishing to speak after the Minister should email the clerk during the debate. Anyone wishing to press the amendment to a Division should make that clear in the debate.

Amendment 81

Moved by