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

Lord Rosser Excerpts

Thursday 10th December 2020 Lords Chamber

[Lord Rosser (Lab) [V]]

The Explanatory Memorandum for these regulations says that their purpose is to amend or revoke a range of some 80 or so existing pieces of domestic primary and secondary legislation, using powers primarily under Section 5 of the Immigration and Social Security Co-ordination (EU Withdrawal) Act 2020, which ends free movement at the end of this month. The Section 5 powers can be used to modify, by regulations, Acts of Parliament—Henry VIII powers—statutory instruments and retained EU law. Nobody could accuse the Government of being shy about using this power, which diminishes the role that Parliament can play in amending, challenging and questioning the detailed changes to the laws of this land which the Government are making in some 55 pages of amendments and schedules in these regulations.

There does not appear to be anything in these regulations that would be different depending on whether there was a deal or no deal, so all of this will have been known to the Government months ago. Why then are these regulations, all 55 pages of amendments and schedules, including involving the use of Henry VIII powers taking away rights and protections, being brought forward for approval by the Government so late in the day? I ask them in their response to give a clear assurance, on the record, that the legislative changes in these rushed regulations will work as intended and are in scope of the Section 5 power, and that further amendments, which could and should have been in these regulations, will not be needed. I will wait to see whether they give that clear assurance on the record and, if they do, whether it is caveat free.

I will raise a few specific points. Will the Government say whether all the detailed legislative changes in these regulations arise from the ending of free movement? I ask that because there is a change to the Immigration Act 1971 which widens the power to exclude people arriving from the common travel area—Ireland, the Channel Islands and the Isle of Man—so that exclusions on “conducive to the public good” grounds need no longer solely be on a national security ground but on a much wider basis, and also that notice of exclusion need no longer be in writing. This does not appear to be a necessary consequence of the withdrawal agreement, so why is a Henry VIII power being used here to make a non-Brexit related change, and why is the change being made?

Further, there also appears to be an amendment to the Borders, Citizenship and Immigration Act 2009, replacing “a qualifying CTA entitlement” with

“the relevant status as an Irish citizen”.

That language suggests that the CTA covers only the UK and the Republic of Ireland, as it omits the Isle of Man and the Channel Islands. Will the Government comment on the significance of the wording to which I have referred?

There is also an amendment made to the First-tier Tribunal (Immigration and Asylum Chamber) Fees Order 2011, which would omit the paragraph saying that there is

“no fee payable for an appeal against a decision made under section 5(1) of the 1971 Act (a decision to make a deportation order).”

This would appear to have the possible effect of making it more costly and difficult to appeal a deportation order. Once again, this would appear to be a change being made, this time to an SI, which is unrelated to our leaving the EU and the ending of free movement. Will the Government confirm whether this is the case, and what the real purpose is behind the amendment to this particular SI? Will they also say how many, and which, of the amendments and schedules, in whole or in part, in these regulations are not directly related to our leaving the EU and the end of free movement?

The amendment to the Aliens’ Employment Act 1955 leaves EU citizens and family members with leave to enter or remain on a basis outside the EU settlement scheme—for example, as family members or as skilled workers—with restricted access to Civil Service jobs, as has already been mentioned. This issue was raised in the Commons, when the government answer was that it was right that someone who works in the Civil Service has the appropriate immigration permission for the UK. That does not answer the question, though, of why the Government are placing this restricted access on people who are lawfully resident. I would be grateful for a response from the Government to that question.

The regulations relating to changes to marriage and regarding sham marriage come into force on 1 July 2021, as the Minister said. In the Commons, the Government said that this will make it easier for those conducting legal ceremonies, since the grace period for the EU settlement scheme will have ended by then. Was this delayed coming-into-force date the result of representations to the Government, or was it a delayed date that the Government decided to introduce off their own bat? I ask that since there has been no public consultation on these regulations—apparently not even with the Law Commission—so organisations or bodies that might, for example, have been able to make a credible case for a later introduction date for some of these regulations have not been given the opportunity by the Government to do so. In reality, this was presumably because of the way these rushed regulations have been brought forward so late in the day.

Finally, what views did the devolved Administrations express on these regulations? I await the Government’s response to the questions raised in this debate.