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

Lord Rosser Excerpts

Committee stage & Committee: 2nd sitting (Hansard) & Committee: 2nd sitting (Hansard): House of Lords
Wednesday 9th September 2020 Lords Chamber

[The Deputy Chairman of Committees (Baroness McIntosh of Hudnall) (Lab)]

The noble Lord, Lord Roberts of Llandudno, has withdrawn, so I call the noble Lord, Lord Rosser.

[Lord Rosser (Lab)]

It seems that the amendments in this group are similar in that they all relate to the right or ability to work. Amendment 24, to which my name is attached, requires that asylum seekers and their adult dependants be allowed to apply to the Secretary of State for the right to work if their application has not had a decision since six months of it being made. The reason the amendment only refers to EEA and Swiss nationals, not to those from other parts of the world as well, is to keep the amendment within the scope of the Bill.

Those seeking asylum in the UK can only apply for the right to work, whether as an employee or self-employed, once they have been waiting for a decision on their asylum claim for over a year, provided that the delay is not considered to have been caused by the applicants themselves. Adult dependants of people seeking asylum are not allowed to apply for permission to work at all, something which impacts women, in particular. Even then, there is a further significant hurdle for those seeking asylum, because employment is restricted to a limited list of skilled occupations on a government shortage occupation list—limited despite a change in skill levels that will mean the small numbers granted the right to work are more than likely to be unable to do so. It is not clear what the usefulness is of the shortage occupation list.

The reality is that those awaiting a decision on their asylum claim, as has been said, have to live on £5.66 per day to support themselves and, where applicable, their families and, as a result, are at serious risk of exploitation, including exploitative labour. No other European country has such a restrictive waiting period. The EU reception conditions directive of 2013, to which we did not opt in, set the maximum period for the right to work at, I think, nine months after an individual has lodged an asylum claim. Some three quarters of European countries, though, have a waiting period of six months or less, and many other countries do not place any restrictions on the type of employment that someone can take up.

When a person applies for asylum in the UK, the Home Office aims to make a decision on the case within six months, provided it is not classified as “non-straightforward”. In recent years, the number of people waiting for a decision on their asylum claim for more than six months—both main applicants and dependants—has grown considerably, to cover some 60% of all those waiting. This is the highest level, I believe, since public records began, as my noble friend Lord Dubs said.

It has been argued that opening up the labour market to people in the asylum system to a greater extent would only encourage more people to try to get to the UK and seek asylum simply as a means of getting to work in this country. But there is little or no evidence of such a link. Other factors, as the noble Baroness, Lady Meacher, said, such as the ability to speak the language of the host country or the presence of relatives or friends in the host country, are the significant ones. Surveys have also suggested nearly three quarters of those arriving in the UK were not aware, prior to arriving, that they would not be allowed to work.

On Monday, we discussed the high numbers of vacancies in the care sector, but that is not the only sector where there are vacancies and skills shortages. Many of those seeking asylum in this country are well qualified with skills we need. A survey earlier this year showed that one in seven of those seeking asylum had worked in health or social care and that 45% of respondents’ previous occupations would have defined them as “critical workers” during the Covid-19 pandemic. As has already been said, easing the restrictions on the ability of those claiming asylum to work would not only reduce the cost to public funds of the minimal support payments but bring in extra money from the resultant income tax and national insurance contributions.

As I understand it, the Home Office began a review of the right to work policy in 2018, following the then Immigration Minister noting that there was “much merit in the arguments for reform”. What is the position with that review one year and nine months later? Has it been finalised? If so, what were the conclusions? It should not take one year and nine months to complete a review if that is the position.

Taking into account support rates of just under £40 a week and National Audit Office estimates that accommodation costs £560 per month, the approximate cost of supporting one person waiting for a decision on their asylum claim is just under £9,000 per annum. Even if such a person, once allowed to work, needed some accommodation support, the Government would still save a minimum of over £2,000 per annum for each person in employment and no longer requiring subsistence cash support.

The Government have normally argued that work is a route out of poverty. Apparently, though, that principle does not apply to those awaiting the outcome of their asylum claim, nearly all of whom, as the right reverend Prelate the Bishop of Durham said, want to work and support themselves and their families and offer their often much-needed skills to this country. Why do we leave them, then, in a potential or actual state of poverty, feeling a sense of hopelessness and despair for often lengthy periods of time?

There are long delays in processing asylum applications and appeals. The ban on asylum workers working provides little incentive for the Home Office to speed up the progress of these cases, and with 45% of appeals succeeding, we are delaying giving the chance to work to people who will ultimately obtain it. It is time for a change of approach, and that is what I trust we will hear from the Government in their response—a change of approach that hopefully would also indicate that we were moving away from the hostile environment through our actions, not just our words.

[The Deputy Chairman of Committees (Baroness McIntosh of Hudnall) (Lab)]

My Lords, I understand that the noble Lord, Lord Green of Deddington, was withdrawn from the speakers’ list in error and is ready to speak now, so I call the noble Lord, Lord Green of Deddington.

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[Baroness Hamwee (LD) [V]]

My Lords, some years ago I chaired some work on the minimum income requirement affecting British people who, as has been said, never thought that they would be affected by their own country’s immigration laws.

The noble Baroness, Lady Bennett, mentioned someone from south Wales. I encountered someone from south Wales, David, whose second wife was a teacher from Canada—I do not think that you can get more respectable than being a teacher from Canada. By his first marriage he had a disabled daughter. Had he been able to bring his wife to the UK to share the care of his daughter, that, among other things, would have saved the state a lot of money. Instead, he had to limit the amount of work and the kind of work that he did and so did not meet the minimum income requirement. She was appallingly treated. I do not believe people in British society would support this, were they to know about it. Many do not until they are brought up against it personally. I have long thought that the answer to all this will be found only when a son or daughter of a Cabinet Minister finds himself or herself in this situation.

The focus at that time was largely on spouse visas and what can be taken into account in calculating incomes. That has been changed somewhat, but the issue remains. The rules about leave to enter for an individual’s parents are so harsh that they really amount to saying, “You need to be so much in need of care and support that you probably would not be fit to travel.”

The reality of this is striking home, as noble Lords have said. One of my noble friends received a letter, which she passed on to me at the weekend, from a UK citizen who has found herself in this situation. I shall read some short extracts: “As someone who married a non-UK EU national in the UK but then moved to his country to live as his parents were already elderly, never was it in my worst nightmares that I would not be able to do the same and I might be forced to choose between caring for him and caring for my mother. When I left, returning was always an option, as I work remotely, to be able to return to care for my parents. My parents are now on the brink of their eighth decade. My mother has lung issues. My father has prostate cancer. It is inevitable that I will want and need to return at some point. What child does not want to care for their parents themselves?”

She goes on: “I and many of the more than 1 million UK citizens living in the EU will not have that right. If we do not return before the end of 2022, our fate will become income-dependent. How is it conceivable that the British Government’s approach involves discrimination against its own citizens? Surely, the family is as sacrosanct in the UK as in the rest of Europe.” I am pleased, from our Benches, to support this amendment.

[Lord Rosser (Lab)]

My Lords, I declare a family interest in the issue raised by the amendment. As the noble Lord, Lord Flight, said, the wording in the Bill means that British citizens who moved to the EU or EEA while we were a member will lose their right to return to this country—their country of birth—with a non-British partner or children unless they can satisfy financial conditions that many may well find difficult or impossible to meet. Amendment 23, to which I am a signatory, seeks to address this situation.

I do not wish to repeat the points made by the noble Lord, Lord Flight, in moving this amendment. I agree with everything that he said. I hope that as well as responding to the arguments that he made, the Minister will also comment on his point that the change is, in effect, retrospective, since it is our country and our Government who are changing the rules that apply to our citizens on this issue. When they made their personal decisions to move to the EU or EEA, the rules, as they currently apply, may well have been a factor in making that decision; it is our Government who are now apparently seeking to change those rules.

No doubt the Minister, on behalf of the Government, will also comment on a further point made by the noble Lord, Lord Flight. He said that it appears that the new UK rules that will apply to British citizens in the situation that we are talking about will be much tougher in their terms than those that apply to EU citizens with settled status in respect of their ability to bring their dependants to join them in the UK. No doubt the Minister will confirm, in the Government’s reply, whether that is the case.

[Baroness Williams of Trafford (Con)]

My Lords, I thank my noble friend, Lord Flight, for his Amendment 23, which refers to a specific cohort of people relating to what is known as the Surinder Singh route for family immigration. It would require the Government to make provision in regulations made under Clause 4 for lifetime rights for UK nationals resident in the EEA or Switzerland by the end of the transition period to return to the UK accompanied, or to be joined, by their close family members. These family members would thereby continue indefinitely to bypass the Immigration Rules that would otherwise apply to family members of UK nationals.

The Surinder Singh route, so-called after the relevant judgment of the Court of Justice of the European Union, refers to arrangements whereby family members of UK nationals who have resided in the EEA or Switzerland with those UK nationals while they exercised their treaty rights are able to return with them to the UK under EU free-movement law. Surinder Singh family members are not protected by the withdrawal agreement but, as a matter of domestic policy, the Government have decided that UK nationals resident in the EEA or Switzerland under EU free-movement law by the end of the transition period will have until 29 March 2022 to bring their existing close family members—a spouse, civil partner, durable partner, child or dependent parent—to the UK on EU law terms. That is three years after the date when the UK was originally supposed to have left the EU. That says to me that it is not retrospective, but if my noble friend wishes to intervene after I sit down, I would be grateful if he would let me know whether I have satisfied that point.

The family relationship must have existed before the UK left the EU on 31 January 2020, unless the child was born or adopted after this date, and must continue to exist when the family member seeks to come to the UK. Other family members, such as a spouse, where the relationship was formed after the UK left the EU, or other dependent relatives, have until the end of the transition period on 31 December 2020 to return to the UK with a qualifying UK national on EU free-movement terms. If they return to the UK with the qualifying UK national by the relevant date, all these family members will then be eligible to apply for status to remain here under the EU settlement scheme. If they do not return to the UK with the qualifying UK national by the relevant date, they will need to meet the requirements of the Immigration Rules then applicable to family members of UK nationals if they wish to come to the UK.

We hope this is a fair and balanced policy. It was developed after we listened to the concerns of UK nationals living in the EEA and Switzerland. The policy was announced on 4 April 2019, as I said, giving UK nationals almost three years to decide whether they wished to return to the UK by 29 March 2022 with their existing close family members and, if so, to make plans to do so.

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Moved by

[Lord Rosser]

25: Clause 4, page 3, line 8, at end insert—
“( ) No regulations may be made under subsection (1) after the end of the period of one year beginning with IP completion day.( ) In this section “IP completion day” has the meaning given in section 39 of the European Union (Withdrawal Agreement) Act 2020 (interpretation).”Member’s explanatory statement
This would provide that the regulation making powers under this section expire within one year of the end of the transition period.

[Lord Rosser (Lab)]

Amendment 25, to which my name is attached, would introduce a sunset clause limiting the use of delegated powers under Clause 4 to one year, beginning with the implementation period completion day at the end of the transition period.

Immigration involves fundamental rights on a regular basis: rights to liberty, respect for private family life, property rights, the right to non-discrimination, data protection rights and a prohibition on inhumane or inhuman and degrading treatment. Changes that could or would affect fundamental rights should be made by Parliament through primary legislation, not by Ministers through secondary legislation where there is no ability to amend or alter what is proposed.

As we have discussed already, the Lords Constitution Committee and the Lords Delegated Powers and Regulatory Reform Committee have both said that the provisions in the Bill

“include broad delegated powers, including Henry VIII powers, for which there is little policy detail as to their intended use; insufficient safeguards and scrutiny processes in relation to”

how those powers are used. Other comments from one or both of these Lords committees are that

“The Bill effectively changes significant areas of immigration law from primary into secondary legislation, weakening the parliamentary scrutiny that will be required for any future amendment or repeal”,


and that “A Henry VIII clause”, such as Clause 4,

“that is subject to such a permissive test as ‘appropriateness’, and which may be used to do anything ‘in connection with’ in relation to so broad and important an issue as free movement, is constitutionally unacceptable”

and undermines “fundamental elements”.

The Government maintain that the Henry VIII powers in Clause 4 are only to address necessary technical legislative changes to primary legislation arising from the ending of free movement. The same powers in Clause 5, say the Government—those are the subject of a separate amendment later on—are there, first, to enable consequential amendments to be made to primary legislation and other retained EU law if areas of the retained EU social security co-ordination regulations, co-ordinating access to social security for individuals moving between EEA states, have to be repealed because they are not covered in a reciprocal agreement with the EU following the end of the transition period; and, secondly, if consequential technical amendments to legislation are needed arising from any new reciprocal agreement with the EU.

However, the trouble is that the actual terms of the Bill give the Government much greater powers than they say they need and are asking us to accept would be the situation. The Delegated Powers Committee said that Clause 4 presents

“a very significant delegation of power from Parliament to the Executive”,

and on Clause 5, it said:

“Parliament is being asked to scrutinise a clause so lacking in any substance whatsoever that it cannot even be described as a skeleton.”


If it the Government only want these very significant delegated powers, including Henry VIII powers, for the reasons they have previously given, they will surely recognise the potential constitutional dangers of leaving powers which represent such a significant delegation of power from Parliament to the Executive permanently on the statute book. Accordingly, if the Government want to use these powers only for the reasons they have mentioned, they should have no difficulty agreeing to the sunset clause provided for in this amendment, which I beg to move.

[Baroness Ludford (LD)]

We on these Benches are most grateful to the noble Lord, Lord Rosser, for tabling this amendment, which I can describe as an insurance policy. I agree with everything he said about Clause 4 powers, which we have had a chance to discuss, but we have a hierarchy of aims, the top one being to persuade the Government that Clause 4 is really not fit for purpose, as our committees have helpfully advised us, and that they need to go away and think again about it. The second choice would be that they accept that the broad scope, the width, of the powers they intend to give themselves is far too vague and imprecise—“in connection with”, “affecting”, et cetera—and that they need serious discipline, rigour and tightening up. The advantage of the amendment of the noble Lord, Lord Rosser, is that if we fail in those ambitions, we would at least, I hope, have the fallback position of looking after a year at what improvements we could make.

This is not like the Covid regulations, where the Government are reacting to an emergency situation. That is the more normal scenario for a sunset clause, but, none the less, the clause has a huge impact and demonstrates that “taking back control” did not mean taking back control for Parliament, let alone the people, it meant taking back control for the Government. It was a clever slogan, but unfortunately it has been heavily misused, and Clause 4 sums up all the problems with the approach that has been followed in the past few years.

If we do not succeed in our other ambitions in relation to Clause 4, it is sensible to have this fallback position of a sunset clause so that at least we would have a specified review date when we could reconsider what use is being made of Clause 4.

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For those reasons, I hope that the noble Lord will be content to withdraw his amendment.

[Lord Rosser (Lab)]

I will be withdrawing the amendment. I listened with considerable interest to the Minister, and I am aware of what has been said previously. It almost seemed to me an invitation to come back with a sunset clause that would apply one month after the end of the transition period, because the Government are basically saying that they will get everything done within the next few months, after this Bill becomes an Act.

However, the Government’s view is that there might be things they miss which will need to be done. Therefore, they feel that they need to have this power on a much longer-term basis so that, if they do find things they have missed, they can still put them right without coming back for full parliamentary scrutiny.

The argument could be made the other way: a sunset clause which came into operation even earlier than the period of time I propose might give the Government the incentive to make sure that they jolly well did get things right first time, and did not have to use the argument that they missed something they should have put right under the terms of Clause 4.

I thank the Minister for his reply. I do not sense—from the nature of their stance on this issue—that the Government have too much confidence that they will use these powers within the few months that the Minister has indicated, and for the very technical purposes that they need them. If the Government did have that full confidence, they would not have any doubt, or any hesitation, about discussing whether there should be a sunset clause which was even earlier than I propose.

I beg leave to withdraw my amendment.

Amendment 25 withdrawn.

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[Baroness Ludford (LD)]

My Lords, this is not a workable notion. I am not the world’s expert on the non-EU migration system. It is a world I am having to learn about, having known far more about EU free movement in the past. As I understand it, most aspects of non-EU migration to date—which is going to be changed by the points-based system—have, I think, been affected by caps within individual tiers. I am sure I will be corrected if I am wrong. That has not, from some people’s point of view, been a great success. After all, for at least the last few years, annual non-EEA migration has been considerably higher than EU or EEA migration. I understand the aims of the authors of this amendment, but I am not sure how or why it would be expected to reduce numbers.

The amendment also offers us a very bureaucratic system rather than, as the Government intend, one that would respond in a flexible, streamlined fashion to the need for skills in our economy. After all, if you are an employer with a crucial post that cannot be filled—perhaps the geophysicist I mentioned earlier—it seems somewhat ridiculous that you would fail to recruit an expert that you could not find at home because you were the first one after the cap had been imposed.

It is not as if it is a free-for-all. As I understand it, the sponsor employer has to sponsor the call welcoming bids from would-be immigrants and has to pay the immigration surcharge and so on. It is not as if the numbers are not overseen by the system and by a number of individual needs and choices that are driven by the needs of the economy and the employer.

An overall cap would be unworkable and unhelpful to the economy and to employers. Indeed, as the noble Lord, Lord Kerr, pointed out, there are areas of the United Kingdom—he mentioned Scotland—that have a need for a greater population. There is one thing worse than having an expanding population, and that is having a declining one, as Germany is finding out and Japan has found out. There will come a time, with declining birth rates in this country, when we will be wishing that we had more immigrants. Indeed, that partly motivated Chancellor Merkel in 2015.

All things considered, I cannot offer from these Benches support for this amendment. I acknowledge the sincerity with which it is proposed, but I honestly do not think it is wise or workable.

[Lord Rosser (Lab)]

My Lords, I hope the Government’s response to this amendment, and indeed to the next two, might reveal something about their intentions and objectives as far as the new points-based immigration system is concerned.

I feel there is a lack of consistency on behalf of the Government about how crowded or otherwise they believe this country actually is. When it comes to the planning White Paper, and the opposition there appears to be to it from within the ranks of the Government party, one of the responses you get is that it is only a very small percentage of this country that is being built on. Yet when it comes to an immigration system, one senses that the Government base it on the fact that this country is too crowded. There appears to be a contrast, depending on whether they are talking about the planning White Paper or the immigration system, in what their view is on how crowded or otherwise this country actually is at present.

I hope that when the Government reply we shall find out a bit more about their statement that their points-based immigration system will reduce migration. An answer on that might address some of the concerns raised by the noble Lord, Lord Green of Deddington. The Government have never told us the basis on which they reached that conclusion—in spite of the comments of my noble friend Lord Adonis, and the noble Lord, Lord Green of Deddington, at Second Reading, which suggested that the contrary would be the case.

Over the past decade we have heard policy statements about reducing migration to below 100,000, but those statements—I will not go into whether they were sensible or otherwise—were followed by a rise in net migration, including, and not least, from outside the EU, where freedom of movement does not apply.

I hope that when the Minister responds to this amendment we will get a very clear statement from the Government as to exactly why and how they happen to believe that their new points-based immigration system will lead to a reduction in migration—if that, rightly or wrongly, is their policy objective. Such a clear statement is badly needed, and could be given right now.

[Baroness Williams of Trafford (Con)]

I thank the noble Lord, Lord Green of Deddington, and pay my respect to the deep expertise that he brings to this subject. The House benefits from it every time he speaks. As he said, his amendment would reintroduce an annual limit on the number of people that might be granted permission to enter the UK to take up skilled employment. The existing cap, which the Government are committed to suspending, is set at 20,700 and is administered monthly to those seeking entry clearance as skilled workers.

Currently, applications are held till the end of each allocation month. If applications exceed available places in any month, priority is given to occupations on the shortage occupation list and PhD level occupations. Thereafter, priority is broadly determined by salary, with higher-paying jobs getting first preference. On the face of it, this sounds like a sensible measure to control and limit migration to the UK, and is consistent with the aim of prioritising the brightest and best to come to the UK. However, it adds to the burden on business, as the noble Lord, Lord Kerr, pointed out, slows the process of recruiting a skilled migrant and creates uncertainty among employers. It also creates a situation in which a migrant might be perceived as of value one day and not the next, which is what inevitably happens when a cap binds.

We want the UK to be a great place to do business, and we want to reduce uncertainty for UK employers and businesses—which imposes costs and prevents forward planning—while ensuring that we do not put unnecessary obstacles in the path of those who want to operate and contribute, so that the UK’s economy continues to prosper. As noble Lords know, we also want to create a simple global immigration system that focuses on skills and talent and the contribution migrants can make to the UK, rather than on where they come from.

We should be imposing a cap only if we think it would genuinely offer extra protection to resident workers and can be implemented in a way that mitigates uncertainty for businesses and employers across the whole of the UK. The Government do not think that that is so. That view is based on the clear economic advice of the independent MAC, supported by evidence from a wide range of stakeholders.

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It is a truism to say, “We wish we had a plumber in the family”, but we can think of other skills that would have been useful, particularly over the past six months. I jolly well wish I could have a family member or someone who could come to the house to help me—when even our wonderful Parliamentary Digital Service cannot—with things that frustrate me in the tech and computer field. That is the sort of person who rightly has considerable value on the labour market, and we have been slow, as a country, to value that. However, the immigration system is not the way to enforce and encourage training, whether that be within employment or in the education system. Efforts are happening, but I am sure my colleagues who deal with education would say they are too little and in many ways too late. But artificial means within the immigration system, whether a cap or the resident market test, add more red tape and delay. So, the two things have to go together: employers need to be able to find skills if they cannot locally, but at the same time we need to increase the pipeline within the UK to reduce the need to import those skills, if that is what is desired. I am afraid that I am not persuaded that this amendment—or the previous one—is going to help us have better skills or a better immigration system.

[Lord Rosser (Lab)]

I think reference was made earlier to the position of trade unions vis-à-vis this amendment. I certainly cannot speak on behalf of trade unions, but I say as an individual that I get the impression that trade unions will probably push more than anyone else to have a better trained workforce and for spending more money on training by employers. They have not always received the response they should have to those representations and that pressure.

As for the specific terms of this amendment, it has been said there has been a demise as far as the resident labour market test is concerned. I await with interest to hear whether Government agree with that, because that is what is being said, and if the Government accept that that is true, to ask why they think that has been the case and what they think the impact of that, if it is true, has been on the employment of British citizens. I will also be interested to hear from the Government’s reply whether the use or non-use of the resident labour market test will be used to reduce or increase migrations, since I think I understood from the noble Baroness’s reply to the previous amendment that it would be the Government’s intention to use the salary threshold and the immigration skills charge—presumably by increasing or raising the threshold or by increasing or lowering the immigration skills charge—to have an impact on the level of net migrations. I will be interested to find out, when we hear the Government’s response to this amendment, whether the use or otherwise of the resident labour market test will also be used by the Government to seek to control levels of migration.

[Baroness Williams of Trafford (Con)]

My Lords, again, I thank the noble Lord, Lord Green of Deddington, for tabling this amendment and all noble Lords who have spoken to it. As noble Lords have said, this amendment would have the effect of reintroducing a resident labour market test for EEA citizens, otherwise known as the RLMT. The RLMT requires a job to be advertised in the UK for 28 days to establish whether there is anyone suitable in the domestic labour market before the job can be offered to an overseas migrant. Again, on the face of it this is a very sensible measure, but it would add to the burden on businesses and would considerably slow the process of recruiting a skilled migrant.

We want the UK to be a great place to do business and to ensure we do not impose unnecessary obstacles in the path of those who want to operate and contribute, ensuring that the UK’s economy continues to prosper. We also want to create a single, global immigration system, focusing on skills and talents and the contribution that migrants can make to the UK, rather than where they have come from. We should be imposing an RLMT only if we think it would genuinely offer protection to resident workers, and the Government do not think at this stage that that would be so. That is not just the Government’s opinion but is based on the clear economic advice of the MAC: of course, the MAC consults very widely with stakeholders before producing its recommendation.

I shall quote from a report published in September 2018 on the impact of EEA migration. The MAC said it was,

“sceptical about how effective the RLMT is”

in giving settled workers the first opportunity to fill jobs. It went on to say:

“We think it likely the bureaucratic costs of the RLMT outweigh any economic benefit”.


Finally, the MAC said:

“We therefore recommend the abolition of the RLMT”.


Equally pertinent is the MAC’s next paragraph:

“We do think it important to have protection against employers using migrants to under-cut UK-born workers. The best protection is a robust approach to salary thresholds and the Immigration Skills Charge and not the RLMT.”


The Government agree, which is why we are maintaining a firm requirement in the new points-based immigration system for migrants who are coming under the skilled worker route to be paid a salary that does not undercut domestic workers.

As outlined in the Government’s February policy statement, we have accepted the MAC’s recommendations on salary thresholds set out in its 28 January report on salary threshold and points-based systems. Building on this, the Government have set out additional detail on likely salary thresholds in the July Further Details document, so noble Lords can see exactly the approach we are taking and how we are ensuring that migrants cannot come in on the cheap. I remind noble Lords that, again on the MAC’s advice, we are retaining the immigration skills charge, which has to be paid by all employers of skilled migrant workers. The requirement to pay that charge, the proceeds of which contribute directly to the UK skills budget, helps ensure that employers are unlikely to employ a migrant when there is someone suitable to undertake the role within the domestic labour workforce. I hope that, on that basis, the noble Lord will be happy to withdraw his amendment.

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[Baroness Ludford (LD)]

My Lords, I am not really clear how this is meant to work. Is there any intention on the part of the Government to allow the so-called new entrants to enjoy a lower minimum salary requirement than other migrants? It is clear that there is something that I have not fully understood on this. I assume that the authors of the amendment fear, anticipate or foresee such a development, but it may be that, as I admitted earlier, my knowledge of the points-based migration system is insufficient to allow me to fully grasp to what mischief this amendment is addressed. I am surprised it is assumed that this situation could arise.

That is rather a lame comment, so I look forward even more than usual to hearing the Minister’s explanation of why this amendment is—as I assume she is about to say—unnecessary or does not pass muster. It seems to me that it too possibly falls foul of the problem of being bureaucratic and inflexible. I think I should stop there and listen to the Minister’s expert explanation.

[Lord Rosser (Lab)]

I think I am in a very similar position to the noble Baroness, Lady Ludford, in wanting to hear the Government’s reply.

I notice that the Government have been told that we are heading for a policy shambles, and I notice that the Minister has been told by those behind her that we are making too many changes. Obviously this is something that inevitably happens when we have a Bill with no proper scrutiny of what the Government can do.

Having made that comment, I will listen with interest to what the Minister has to say and to whether she agrees that we are heading for a policy shambles and with the other concerns that have been raised by the noble Lord, Lord Green of Deddington.

[Baroness Williams of Trafford (Con)]

I again thank the noble Lord, Lord Green, and all noble Lords who spoke on these amendments. For the benefit of the noble Baroness, Lady Ludford, the noble Lord, Lord Rosser, and others, I will circulate the current rules for new entrants—rather than send everyone to sleep with the old rules and the new rules—so that they can compare and contrast.

The amendment seeks to put in place separate parliamentary approval for regulations allowing EEA and Swiss citizen new entrants to the labour market to be paid less than other skilled workers. Minimum salary requirements are a key part of our new skilled worker route. They serve three main purposes: first, as an indicator that a job for which a UK employer wishes to recruit a migrant worker is indeed a skilled job; secondly, to ensure that a migrant worker is paid a fair wage; and thirdly, to prevent employers using migrant workers as a source of cheap labour, undercutting wages for resident workers. The noble Lord is absolutely right that we must have confidence in setting the salary requirements for skilled workers at the right level, balancing the need to control immigration effectively and ensure that the UK’s economy continues to prosper, and not setting them so low that they do not achieve these objectives.

As I said ahead of outlining proposals for the UK’s points-based immigration system, the Government sought independent economic advice from the MAC. In its January 2020 report, A Points-Based System and Salary Thresholds for Immigration—which I am sure everyone has read—the MAC addressed the need for a range of salary thresholds and made recommendations for new entrants. The Government have accepted the recommendations in that report. Our salary requirements for skilled workers are based on national earnings data for UK workers. The MAC identified that new entrants—defined essentially as those at the start of their careers—typically earn around 30% less than experienced workers. Setting lower salary requirements for new entrants reflects this reality and means we avoid setting the requirements at an artificially high level. Reduced rates for new entrants have been part of the immigration system since 2013. While we intend to continue the new entrant salary rate, in future the new rules will set a more consistent 30% reduction across all occupations. As the MAC identified, the differences in the current system are very large for some occupations. New entrant quantity surveyors, for example, may be paid 69% less than more experienced migrant workers in the same profession.

The noble Lord is also right there should be parliamentary scrutiny of these requirements, but there is already a long-established procedure for this. The Government are required to set out their immigration policy in the Immigration Rules. This includes salary requirements, which can determine whether an immigration application succeeds or fails. Changes to the rules must be laid before Parliament under the procedure set out in Section 3(2) of the Immigration Act 1971. Either House may disapprove the changes by negative resolution within 40 days of them being laid and the Secretary of State may make any changes that appear to her required in the circumstances. Any such changes will be laid before Parliament within a further 40 days.

I do not think that it is necessary or proportionate to introduce a separate procedure for salary requirements for new entrants. As I have said, lower salary requirements for new entrants are not new. Skilled workers in the existing immigration system are subject to minimum salary requirements and the current Immigration Rules already provide for lower salaries for new entrants. Furthermore, there seems no particular reason for the procedure for new entrant salaries to be different from the procedure for the general salary requirements, or indeed any other requirements for skilled workers, such as the need for a sponsoring employer, a job at the appropriate skill level and the ability to speak English to an accepted standard. The nature of our points-based system is that all these requirements are closely interlinked.

Additionally, our salary requirements, including those for new entrants, are based on UK earnings data. We intend to update them regularly in line with the latest available data, ensuring that migrant workers’ pay keeps pace with that of resident workers. The procedure set out in Section 3 of the Immigration Act 1971 enables us to do so quickly and responsively, while maintaining an essential element of parliamentary scrutiny. Bringing forward draft regulations under an affirmative procedure would lessen this responsiveness.

We may also wish to amend the criteria used to identify new entrants in future. By way of example, we will be removing the option relating to university milk round recruitment to reflect the removal of the resident labour market test. We have also agreed the MAC’s recommendation to include options relating to those working towards professional qualifications or moving into post-doctoral positions. Similar changes may be needed from time to time, which this amendment would make more difficult by placing the new entrant criteria in the Bill.

As outlined in the February policy statement, the Government are committed to continuing to refine the system in the light of experience and will consider adding further flexibility. Specific parliamentary arrangements that risk splitting up interconnecting policies should not prevent this.

For the reasons I have set out, including that we will continue to lay before Parliament the full details of requirements—including those for new entrants—I hope that the noble Lord will be happy to withdraw his amendment.

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[Baroness Ludford (LD)]

My Lords, I am pleased to follow powerful speeches from across the House, not least the one I immediately follow, from the noble Lord, Lord Alton, and of course that of the noble Baroness, Lady Lister. I join the tributes to her and her record of campaigning, and indeed to the noble Lord, Lord Alton. Other noble Lords have driven in the same direction: the noble Lord, Lord Russell of Liverpool, the right reverend Prelate the Bishop of Durham, the noble Baroness, Lady Altmann, others on the screen, and of course my noble friends Lady Smith and Lady Hamwee—everybody, to be honest—made the very reasonable request that the Government reconsider their policies on the fees for citizenship. The terms “shabby”, “punitive”, “revenue generator” and “indefensible cross-subsidy”—I think that was from the right reverend Prelate—have all been used.

It seems extremely odd to be discouraging potential citizens. As the noble Baroness, Lady Lister, said, this is being put in a sort of transactional context, but it is more than that. I have only once had the honour of being asked to preside at a citizenship ceremony—when I was an MEP, I was out of the country a lot of the time, so the opportunity arose only once. It really was an honour and a privilege to see all those eager faces looking back at me. Those people wanted to become British citizens, for all the reasons that have been expressed in this debate: to have their status recognised; to have a stake in our society; not to feel an outsider; and to feel that they truly belonged in Britain.

The contrast between the current situation and the language recalled tonight from the debates on the British Nationality Act 1981—which of course was also passed under a Conservative Government—is considerable. We should be encouraging people to become citizens, even if they are dual citizens, which I am glad to say is generally permitted—it is perfectly reasonable for people to choose which cricket team they wish to cheer without feeling that they are not loyal to the country. It seems incomprehensible that we would not want people, particularly those who have been in the country a long time, to move into the full role of citizens. That is good for our existing society, as well as for them. We want more people to feel that they have a stake, that they belong and that they are fully recognised, not fewer people.

Then, of course, there is the special concern about vulnerable children, especially those in care, for whom it is even more unreasonable to charge more than £1,000 for them to become citizens. The danger of a new Windrush scandal has been raised tonight, and we will have a further debate on that at the end of our discussions in Committee. After the experience of the appalling treatment that the Windrush victims suffered, and the Williams review and the Government’s pledge to implement its recommendations, it does not seem very wise to knowingly run the risk that we could be creating more people who are not properly recognised and integrated and who risk all sorts of horrible things happening to them.

From the non-partisan nature of this discussion, it is evident that this proposal has such wide support across the Committee, so I implore the Government to think seriously about whether the cost-benefit ratio of charging what, in the words of the noble Baroness, Lady Altmann, may be three times the actual administrative cost—a 200% mark-up—is truly worth it in view of the wider cost of potentially either excluding people from citizenship or, even worse, having a new Windrush generation.

[Lord Rosser (Lab)]

I will be very brief, since I would only be repeating what has already been said, but I congratulate my noble friend Lady Lister of Burtersett on her determination on this and, indeed, other related issues. EEA and Swiss nationals will shortly be joining the queue of those having to pay visa fees or fees when seeking a right to British citizenship. As we know, the Home Office currently makes a very substantial surplus in relation to this kind of applications following the major cuts in the department’s budget over the last decade. We believe that visa fees should not exceed the cost price.

Amendment 30 provides that regulations under Clause 4

“must ensure that no fee is charged that may deter or prevent registration of an EEA or Swiss national as a British citizen.”

Amendment 68 provides that no person who has lost their free movement rights under this Bill may be charged a fee for registering for British citizenship over the cost of processing their application.

Reference has been made to the British Nationality Act 1981, which contained provisions in respect of payment of fees relating to a child with an entitlement to register for British citizenship. For children with a parent who had free movement rights, Amendment 68 seeks to protect this position by providing that, if they are in care, they may not be charged any fee to register—if they are eligible—for British citizenship and that, otherwise, they may not be charged fees that they or their parent, guardian or carer cannot afford.

I simply conclude by expressing support for the amendment moved by my noble friend Lady Lister. I share the concerns that she expressed about the seemingly very casual attitude to citizenship shown by the Government in the debate in the Commons on this issue. I hope we hear a more understanding response from the Government tonight.

[Baroness Williams of Trafford (Con)]

My Lords, I thank all noble Lords who have spoken so passionately in this debate, but I pay particular tribute to the noble Baroness, Lady Lister of Burtersett. If nothing else, she is utterly consistent. I was going to describe her focus as laser-like but I think terrier-like is probably a good additional description.

I will address the court judgment first for the noble Lord, Lord Alton, and others. My right honourable friend the Home Secretary has been given leave to appeal on that, and we expect a judgment in the autumn. Therefore, the noble Lord will totally understand that I actually cannot even speak about this.

However, putting that aside, I will address the concept of citizenship fees being profit making. The overall income from citizenship fees is £2.09 billion; the cost of BICS, the borders, immigration and citizenship system, is £3.18 billion, so it does not even meet its cost overall. Far from making a profit, it still subsidises the overall cost of BICS. I might add that the principle of charging above cost has been in place for more than a decade: that clearly includes all three main political parties represented here in your Lordships’ House. A consultation was run at the end of 2013 on charging principles, which are included in the Immigration Act 2014. We have continued to apply these charging principles, agreed by Parliament, in any proposed fee changes. That said, the Government’s intention is that EEA and non-EEA citizens will be treated the same under the future immigration system. This means that under the new system, the intent is that existing fees, waivers and exceptions will be applied equally.

The issue of fees charged to EEA citizens has been discussed here and of course, as noble Lords have said, in the other place during the passage of the Bill. Throughout, the Government have been clear that decisions regarding future fees payable or funding of the system should be taken in the round and outside of the passage of the Bill, but I totally understand—I would probably have done the same had I been the noble Baroness, Lady Lister—that this is a good opportunity to discuss it. A legislative structure for application fees, with long-standing appropriate checks and balances is already in place. Any changes by way of amendments to the Bill would obviously undermine the existing legal framework, with its purpose of providing the ability to set fees and exceptions in secondary legislation. It would also reduce clarity in the fees structure by creating an alternative statutory mechanism for controlling fees.

Amendment 30 would have the effect of creating a two-tier system and would not deliver the required funding to the system, or indeed deliver the policy intent of FBIS, the future borders and immigration system.

Turning to Amendment 68, this is clearly an important matter and one which has been discussed during the passage of the Bill in the other place. The aim of subsection (1) of the proposed new clause is to limit the Secretary of State’s power to charge a fee for British citizenship applications to the cost of processing the application for anybody who has enjoyed free movement rights, alongside the wider context of charging fees to register as a British citizen. As I have already noted, imposing any amendments to fees as part of the Bill would cut across the existing statutory framework for fees and would risk undermining the funding and coherence of the current and future system, but I think the noble Baroness knows that; we are simply having a discussion about her feelings and the feelings of others on the level of the fees.

Subsection (2) seeks to prevent the Secretary of State charging a fee to register as a British citizen to the child of a person who has exercised free movement rights if the child is in receipt of local authority assistance. The noble Baroness and other noble Lords will know that local authority assistance is a broad term that could include those accessing a range of financial and practical support measures offered by local authorities, including citizenship fees. The Government offer fee exemptions that allow access to limited and indefinite leave to remain to be obtained free of charge for those who are looked after by a local authority. The ability to obtain citizenship may therefore be delayed, but not removed entirely.

Subsection (3) seeks to remove fees to register as a British citizen for children of those who have exercised free movement rights, where the child, child’s parent, guardian or carer is unable to afford the associated fees. This raises similar points to those in subsection (1) and Amendment 30, and I refer to my responses on those points with regards to maintaining a sustainable current and future immigration system and there already being suitable legislative structures in place.

Implementing subsection (4) would require the Secretary of State to take steps to make persons who have exercised free movement rights aware of their rights to obtain British citizenship under the British Nationality Act 1981. The Government have made it clear, when explaining the rights afforded by settled status obtained via the EU settlement scheme, that this may include a right to apply for British citizenship, providing that eligibility requirements are met. The information about becoming a British citizen is available on GOV.UK and we are committed to ensuring that information of this nature is fully accessible for all.

I hope that, with those explanations, the noble Baroness will feel able to withdraw her amendment.

--- Later in debate ---

[Lord Tyler (LD) [V]]

My Lords, I agree entirely with the noble Lord, not least in his admiration for my noble friend Lady Hamwee, who has indeed undertaken a marathon on this Bill today. By contrast, mine will be a quick sprint. We are anxious to ensure with this amendment that we can get some urgent clarification on an extremely important issue relating to citizenship. There are obvious echoes from the previous debate.

I doubt that any Members here need reminding of the considerable contribution that EU citizens make to the life of this country: to its essential services, its economy and so many local communities, not least in the health services. If I needed any such reminder, I had it most forcibly this afternoon when I paid a visit to the dentist. Many of them, especially if they have worked and lived in the United Kingdom for some time, have made a considerable tax contribution—local as well as national—as my noble friend said. It is a well-respected principle, not least in this House, that there is no taxation without representation.

The Minister may be able to give us an updated figure of those EU citizens who are now regarded as resident here on at least a semi-permanent basis. Those figures are very relevant to this amendment, as they are to a number of other parts of this Bill. I recall that, of all the cities in the world, London has the largest number of French citizens, exceeded only by Paris. These EU friends are employed throughout the UK in some crucial roles. Some are more obvious than others; for example, although most of those who work in agriculture and horticulture are temporary residents, some are employed full time and for longer periods, for example specialist advisers for viniculture in this country. On the day that “Back British Farming” is the slogan that the NFU wishes us to sign up to to demonstrate our commitment to that industry, I should give that a deserved mention.

The significance of the contribution of all these groups caused me to table the Question to which my noble friend referred. I need to reiterate the Answer given to me by the noble Lord, Lord True, on behalf of the Government because it contains some important detail that is relevant to this debate:

“The May local elections were postponed until 2021 due to Covid-19. In that context, the UK Government can confirm that resident EU citizens will remain able to vote and stand in the rescheduled May 2021 local elections in England (including London Assembly elections) and the May 2021 Police and Crime Commissioner elections in England and Wales. Those elected to office will be able to serve their full term and this will also apply to those elected before 2021. The franchise for local elections are devolved in Scotland and Wales. The UK Government has been clear that the issue of local voting rights of EU citizens living in the UK needs to be considered alongside the rights and interests of British expats living abroad. The Government has signed bilateral voting rights agreements with Spain, Portugal and Luxembourg in 2019, and with Poland in May 2020. We continue to work on further bilateral voting rights agreements with other EU member states.”


As my noble friend said, there may be an update tonight from the Minister; that was from 10 July, and there may have been some more successful developments since.

It will be obvious to all in your Lordships’ House that there are two significant limitations to that assurance. First, it is limited to May 2021. After that, there is no guarantee that the principle will be maintained for any future local elections for the majority of these residents. Secondly, the Brexit negotiators have succeeded in achieving only four bilateral agreements—with Spain, Portugal, Luxembourg and Poland—so much larger numbers originally from France, Germany and Italy, for example, are, as far as we know, excluded. What is being done to get agreements with the remaining 23 member states? I also hope that the Minister will be able to spell out what exactly was agreed with these four Governments.

I turn to the other point in this reply: the mention of the very relevant rights and interests of British expats living abroad. I suspect other Members have heard of the distressing concerns, anxieties and frustrations of our fellow British citizens currently living in the EU. I have had a very full report from a survey of many hundreds of these in France—a detailed report of the current dilemmas they face, not least in relation to healthcare and its costs. Surely the time has come—in their interests, as well as the interests of those to whom this amendment directly relates—for the Government to revert to our traditional attitude in this country. For once, could they not take the lead? Can they not now commit to bringing before Parliament certainty of continuing these civil rights? A more generous and realistic approach to these civic rights here would be likely to stimulate an equally humane and civilised response there. I repeat what my noble friend Lady Smith of Newnham said in the previous debate: they surely should do the right thing. I hope the Minister will be able to expand on the very limited information given to me previously and therefore respond positively to our amendment.

[Lord Rosser (Lab)]

Amendment 33 provides that regulations under Clause 4

“may not limit or remove the right to vote in local government elections”

for EU nationals who have lost free movement rights under this Bill

“unless the Secretary of State has laid … a draft of the … regulations and an assessment of their effect … at least three months before … the regulations”

are officially made. Parliament would thus have the opportunity to consider proposals for restricting the right of EU citizens to vote in local elections. Local voting rights are not covered by the withdrawal agreement as they are not an EU competence but a sovereign matter. There is thus an uncertainty about the future voting and candidacy rights in local government elections for many EU citizens as the Government have not gone down the road of giving a firm commitment that all settled EU citizens in this country will continue to have the right to vote in local elections.

All non-citizen residents from Ireland and the Commonwealth can vote in all elections and referendums. This is reciprocal in the case of Ireland, but most Commonwealth countries, including Cyprus and Malta, do not grant resident UK citizens the right to vote. EU citizens from the other 24 member states currently have a partial franchise that allows them to vote and stand as candidates in local government elections. This is guaranteed in UK law and the Government would need to take active steps to remove this right. There is disparity within the UK at present: Scotland and Wales grant voting rights to all migrants, while England and Northern Ireland do not.

As has been said, the Government have been seeking bilateral agreements on local election voting rights with EU member states, with agreements concluded with Spain, Portugal, Luxembourg and Poland. As I understand it, UK nationals will also be able to continue to vote, and in some cases stand, in local elections in EU member states where domestic legislation allows this. We are in favour of EU nationals living in the UK having full voting rights in future elections. They are our neighbours, friends, families, important parts of our communities and vital to our economy and healthcare service. We should value them. The Government should protect the local election voting rights that EU citizens living in this country currently have and seek to extend them so that they become full voting rights.

[Lord Parkinson of Whitley Bay (Con)]

My Lords, I thank the noble Baroness, Lady Hamwee, for moving Amendment 33 and the noble Lords, Lord Judd, Lord Tyler and Lord Rosser, for their contributions to this short but important debate. While I understand the sentiment that underpins the noble Baroness’s amendment and some of the speeches we have heard, I do not think it necessary to add this to the Bill.

As noble Lords will be aware, the Government have already shared the draft illustrative regulations proposed under Clause 4(1). As I hope and am sure noble Lords will have seen, they do not include any provisions relating to the voting rights of EU citizens; nor has there been any immediate change to the entitlement of EU citizens resident here to vote in local elections. Indeed—as the noble Baroness, Lady Hamwee, said—in an Answer to a Question posed by the noble Lord, Lord Tyler, and answered by my noble friend Lord True, the Government recently confirmed that EU citizens resident in England

“will remain able to vote”

in the elections in England next May. That includes not only elections to a number of local authorities at every level but elections for the Mayor of London and the Greater London Assembly and combined authority mayors in the West Midlands, Greater Manchester, Liverpool City Region, the Tees Valley, Cambridgeshire and Peterborough, the West of England and West Yorkshire, as well as for the police and crime commissioner elections in England and Wales on the same day. It also applies to the right of EU citizens to stand in those elections, and anyone elected

“will be able to serve their full term”.

I hope that removes the uncertainty the noble Lord, Lord Rosser, mentioned, in the short term at least. I take the opportunity to pay tribute to EU citizens who have served their local community in public office, whatever party or affiliation they have done that under.

I am afraid I have no update for the noble Lord, Lord Tyler, beyond the Answer by my noble friend Lord True, which he read out in full. As that pointed out, we have taken positive steps in our relationship with EU member states and signed bilateral voting agreements with Spain, Portugal and Luxembourg in 2019; the one signed with Poland in May this year remains the most recent.

This is really a debate more about parliamentary scrutiny. On that issue, which the noble Baroness’s amendment considers and which the noble Lord, Lord Judd, also mentioned, the Bill as drafted makes clear that any primary legislation amended by regulations provided for by Clause 4 would be subject to the affirmative procedure and would have to be approved by both Houses of Parliament. I have no doubt that in the course of any such debates, noble Lords—including those who have spoken tonight—as well as Members in another place, will want to give such regulations their fullest scrutiny. As such, we do not think this amendment is needed.