Immigration (European Economic Area) Regulations 2016

Lord Rosser Excerpts

Thursday 15th December 2016 Lords Chamber

Moved by

[Lord Rosser]

That this House regrets that the Government have laid the Immigration (European Economic Area) Regulations 2016 with insufficient explanatory material to allow the House to gain a clear understanding of the instrument’s policy objective or intended implementation; that they have not provided the House with key guidelines needed to direct how provisions are to be interpreted; and that there has been no prior consultation for a significant change in practice for courts and tribunals considering the restriction of freedom of movement. (SI 2016/1052) 14th Report from the Secondary Legislation Scrutiny Committee

[Lord Rosser (Lab)]

My Lords, I want to go through in some detail what has led me to table the Motion and why I think an explanation from the Government is required. It relates to the findings in two reports: the 14th and 17th reports of the Secondary Legislation Scrutiny Committee. I am not sure that the Motion can be regarded as a surprise. To put it in context, the Home Office is something of a regular offender when it comes to getting on the wrong side of the committee. In its final report of the previous Session, it included a section on the annual work of the committee. Paragraph 36 stated that as a result of the number of deficient Explanatory Memoranda, a new ground for reporting an instrument had been introduced at the beginning of the 2014-15 Session:

“the explanatory material laid in support provides insufficient information to gain a clear understanding about the instrument’s policy objective and intended implementation”.

The paragraph concluded:

“There are, however, still far too many EMs that use obscure jargon or tell us what the instrument does without giving us sufficient context to judge whether the change is significant or appropriate. The Home Office, Defra, DWP and the Ministry of Justice have been particular offenders in this session”.

The Home Office provided two of the 13 instruments reported for inadequate information last Session: the statement of changes in immigration rules and the Asylum Support (Amendment No. 3) Regulations 2015. The regulations which are the subject of my regret Motion are apparently one of only two instruments reported on the ground of insufficient information so far this year. I am advised by the Committee Office that the Secondary Legislation Scrutiny Committee does not report in this way to the House when there are just minor glitches. It is done only, as with these regulations, when the missing material is vital to a proper understanding of the policy.

So what are the issues raised by the committee? First, Schedule 1 sets out for the first time a non-exhaustive list of the “fundamental interests of society” which a court or tribunal must have regard to when considering restricting the right of EU citizens and their families to move and reside freely within the territory of the member states. The committee states:

“We are surprised that so significant a change should be implemented by a negative instrument, and also that it was undertaken without any prior consultation”.

Paragraph 8 of the Government’s Explanatory Memorandum, on consultation, asserts:

“The 2016 Regulations in large part consolidate and clarify the provisions under the 2006 Regulations, modernising the language used and simplifying terms where possible in line with current drafting practice. Therefore, no external consultation has been undertaken”.

That would be a convincing explanation of the need for no external consultation, but for the reality that what it says about the regulations is questionable, and clearly did not convince the Secondary Legislation Committee.

I move on to the other issues raised by the committee. In a letter to the Minister of State for Immigration at the Home Office, the chairman of the committee, on the committee’s behalf, stated that it had,

“significant concern about the open-ended character of some provisions in the Regulations and whether they could be interpreted consistently and objectively”.

In that context, the chairman referred specifically to,

“the decision as to whether the residence of a British citizen and another family member in an EEA state is ‘genuine’ (regulation 9); and ‘preventing social harm’ or ‘protecting public services’ under Schedule 1”.

Paragraph 9 of the Explanatory Memorandum states that the Home Office will be issuing guidance. In his letter to the Minister, the chairman of the committee asked the Minister to,

“tell us how the guidance will support understanding of these and other similarly broad expressions contained in the Regulations”.

The chairman went on to say:

“We would also be grateful if you could send us a copy of the guidance with your response and confirm that it will be available to Parliament without delay so that it can be taken into account should these Regulations be debated”.

There was also a reference in the letter to the fact that, under subparagraph 7(h) of Schedule 1 to the regulations,

“numerous lesser offences can be aggregated”.

The committee chairman added that,

“we would welcome clarification about what sort of offences are intended and how many will qualify a person for removal”.

In his reply, the Minister, Robert Goodwill MP, referring to the use of the word “genuine”, said:

“Guidance will set out how caseworkers should approach the ‘genuine residence’ question and the other conditions of regulation 9. The guidance will be published on Gov.uk on 25 November when the changes to regulation 9 come into force. We will notify the Committee when it is available”.

On the references to the wording in Schedule 1, such as “preventing social harm” and “protecting public services”, the Minister said in his response:

“The Regulations need to be able to relate to a broad and varied array of circumstances in which an individual may pose a threat and so it is inevitable that some of the provisions are somewhat general in nature”.

Under the offences referred to under subparagraph 7(h) of Schedule 1, the Minister said:

“There is … no prescribed list of the offences that will fall under subparagraph 7(h) of Schedule 1, nor is there a threshold to the number of offences that must be committed in order to qualify a person for a decision to be made on the grounds of public policy or public security”.

The Minister went on to say:

“These Regulations will be accompanied by guidance to assist with the interpretation of the provisions. This will provide more detail on the sorts of circumstances which could be considered when making a decision on the grounds of public policy and public security. The guidance will be published on Gov.uk on 1 February when the provisions come into force. We will notify the Committee when it is available”.

Not surprisingly, the committee was unimpressed with the Minister’s response. It said in its 14th report, published on 17 November, that the Home Office guidance to accompany the regulations had not been available to it for its,

“initial scrutiny and nor was a draft”.

It referred to the fact that it had written to the Minister about this and that his reply,

“simply refers us to the guidance which, we note with disappointment, will not be published until the very day the legislation comes into effect”.

The committee went on to say in its report:

“We reiterate our strongly held view that if guidance is intended to direct users on how specific terms should be interpreted or how decisions should be made, it should be laid with the instrument and be available to Parliament throughout the scrutiny process. It would be even better if such definitions were clearly set out on the face of the instrument”.

The committee wrote again to the Minister, Mr Goodwill MP, on 16 November. In its 17th report, published on 8 December—that is, just a few days ago—it said:

“The Minister’s reply of 24 November was again unsatisfactory. He was invited to provide a fuller response which he did in a letter dated 5 December”.

That was the Minister’s third attempt at a letter. The committee continued:

“Although this second response goes some way towards addressing the points we originally raised, it fails to deal with the Committee’s core concern that such open definitions may be inconsistently applied in different parts of the country and result in injustice for individuals”.

The committee’s report goes on to say:

“This instrument exemplifies our more general concern that guidance is being used to supplement secondary legislation with material that should have been included in the legislation itself. In this case, the Home Office has told us that the relevant guidance will not be published until February 2017 when the legislation comes into effect. Our concern about the late availability of the guidance, which we expressed in our 14th Report, has since been aggravated by the publication by the Home Office of guidance in relation to determining the ‘genuineness’ of a marriage (which forms another part of the same instrument) which includes a number of redacted sections which are ‘for Home Office use only’. We question how the courts and individuals can assess their position correctly if a number of the determining factors are kept from them”.

I have a page from the guidance to which the committee is referring. It is page 35 of 44, published for Home Office staff on 25 November 2016. At the top of the page it says:

“Official—sensitive: start of section. The information on this page has been removed as it is for internal Home Office use only”.

Then, right at the foot of that page, the same text appears again. It is no wonder that the committee chose to draw attention to that state of affairs. The report goes on:

“The Minister’s letter of 5 December provides some information about the meaning of ‘protecting public services’ in that he says the expression ‘could be interpreted as benefit fraud or tax evasion, though these examples are not exhaustive’. He fails entirely, however, to address our concern that the term could also be interpreted in a number of less obvious ways, creating a problem for the courts and potential inequality among individual cases. It would, in our view, be more appropriate for such definitions to be fully set out in the Regulations; and, if not, then, as we said in our 14th Report, the relevant guidance should be laid with the Regulations and be available to Parliament throughout the scrutiny process. This is not a new concern, in relation to the Draft Social Security (Personal Independence Payment) Regulations 2013, for example, we said, when ‘guidance is so material to the House’s understanding of how the system will operate for individuals, rather than on a theoretical level … proper scrutiny is not possible if the guidance is not published’”.

--- Later in debate ---

[Baroness Williams of Trafford]

I will certainly take that point back because, if the noble Baroness cannot find it, lesser mortals would really struggle.

In conclusion, the Government believe that the changes made in the 2016 regulations do not fundamentally change the legal position set out in the 2006 regulations and that the measures are proportionate. I hope with those words and with my explanation on the noble Lord’s questions, that he will feel free to withdraw his Motion.

[Lord Rosser]

I want to raise one or two points about what the Minister said. The response we have had from the Government is basically a repetition of what has been said in three letters from the same Minister, one of which I understand followed a meeting with the chairman of the Secondary Legislation Scrutiny Committee. I find it rather puzzling that the Government or the Home Office do not think it rather odd that, if their case is so persuasive and that in effect there has been no real change at all, they have been unable to persuade the Secondary Legislation Scrutiny Committee of that fact. Why does the Minister think that is the case? Could it not be that the Home Office has got it wrong and that it has been making changes?

I noticed in her reply at one stage the Minister said, “We have made some changes”. Did the Home Office ever think that maybe it is wrong and that the Secondary Legislation Scrutiny Committee is right? If we are at a stage where, after a report like this from the Secondary Legislation Scrutiny Committee, the Minister in the department concerned is still prepared to stand at the Dispatch Box when challenged and say, in effect, the scrutiny committee has it wrong and we have it right, it makes you wonder what kind of esteem the Secondary Legislation Scrutiny Committee is held in by the Home Office.

I wonder whether the Home Office is seeking to make any arrangements to offer to meet the committee to talk through this issue of whether there have been significant changes or not, and whether the committee is justified in the really quite serious criticism that it has made. I have not heard anything from the Minister to suggest that the department is willing to offer to discuss this with the committee as a whole.

--- Later in debate ---

[Baroness Williams of Trafford]

My Lords, as a Member of your Lordships’ House, I believe that the scrutiny committees of both Houses should be taken equally seriously. I will take back the point made by the noble Lord about the Home Office engaging with the committee.

On the date of the guidance, I do not think that I can provide any further information at this point. On the length of the document, as I have said, the list would be quite exhaustive. However, I can provide the noble Lord with further detail in writing on all of these points in due course, if that is acceptable to him.

[Lord Rosser]

I thank the Minister for her reply and for being willing to respond to the points that I have raised by writing subsequently. I thank her too for her comments about the relationship between the Home Office and the Secondary Legislation Scrutiny Committee. Perhaps I may make it clear that I was not put up here by the committee to say that perhaps there might be a meeting or at least some method of talking things through, so I hope that I have not put my foot in it on behalf of the committee and that its members would welcome such a meeting, just as the Minister would.

Again, I thank the noble Baroness. I have attempted to put across the concerns of the committee, which I have to say that I agree with, and I am grateful to her for her response. I beg leave to withdraw the Motion.

Motion withdrawn.