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

Nick Thomas-Symonds Excerpts

Thursday 28th February 2019 Public Bill Committees

[The Chair]

With this it will be convenient to discuss new clause 36—Legal Aid—

“(1) The Legal Aid, Sentencing and Punishment of Offenders Act 2012 is amended in accordance with subsection 2.

(2) In Schedule 1, paragraph 30, after sub-paragraph (d), insert—

‘(e) The Immigration and Social Security (EU Withdrawal) Act 2019.’”

This new clause would allow individuals to seek legal aid in order to obtain advice on right to enter and remain under this Act.

[Nick Thomas-Symonds (Torfaen) (Lab)]

It is a pleasure, as always, to serve under your chairmanship, Sir David. I rise to speak to amendment 21 and to support new clause 36—after a brief difference of opinion this morning, it is nice to be back on the same side as the SNP.

Rights mean very little without the means to enforce them. The amendment would put in place a provision regarding legal aid, without which we say the repeal of the retained EU law relating to free movement should not happen. In other words, clause 1 would come into force only in the circumstances set out in the amendment.

Let me say briefly about the EU settlement scheme that the provision of a right to appeal and the legal aid necessary to enforce it would remove any uncertainty about whether there was scrutiny of those decisions. The complexity of the scheme means that errors may well be made, and a right of appeal is the optimum way to secure legal entitlements.

Returning specifically to the amendment, cuts to legal aid are a huge issue for enforcement, but they are also a potential problem with respect to the lawyer who eventually has a case. That is not to suggest that junior lawyers and fee earners in some lower categories do not do an excellent job. They do, but it obviously cannot be fair for a more junior lawyer, or a lawyer without the requisite expertise, to end up taking a case simply on the basis of the money available, without regard to the necessary experience and expertise.

Cost is a huge problem. The withdrawal of legal aid means that, to get before a tribunal with a robust bundle of evidence that gives them some chance of being granted an appeal, people often have to find thousands of pounds—£1,000, £2,000 or perhaps even £3,000. That is the cost simply for getting a bundle of evidence together to go before a tribunal, before even considering whether there is a remote chance of success. All too often, people just cannot afford that.

The amendment, which relates to new clause 36, specifically seeks the provision of legal aid to assist European economic area and Swiss nationals with immigration matters. The context for the amendment is the Legal Aid, Sentencing and Punishment of Offenders Act 2012, which, on the commencement of its civil legal aid provisions on 1 April 2013, largely removed non-asylum immigration advice and representation from the scope of legal aid in England and Wales. Clearly, the ending of rights by clause 1 and schedule 1 will significantly extend the impact of the legal aid cuts made by the 2012 Act by fully subjecting EEA and Swiss nationals and their family members to the immigration system and requiring them to have leave to enter or remain in the UK.

Complexity is not the only reason why the general removal of legal aid for immigration advice and representation is of profound concern. I am grateful to Amnesty International for its thorough briefing, which sets out its concerns. The reality is that substantial evidential hurdles exist for anyone who is seeking to establish rights to private and family life in the UK and measures for the best interests of children. Even if someone who is representing themselves—a litigant in person—understands relevant legal requirements and procedures, they will still have to assess, collect and present the evidence that is required to demonstrate that the rules and other requirements are met. The issue is not only that it is a daunting task and prohibitively expensive, but that the tribunal system is simply not set up to help someone in that situation. Worse still, it is a false economy, because there is no doubt whatever that the provision of a lawyer who is expert in the field will speed up the proceedings, as opposed to the proceedings being slowed down because a number of people have to represent themselves before the tribunal.

The Government have said that they wish to avoid another Windrush scandal. In that case, they would do well to accept this amendment. I should just draw attention to the fact that I was a practising barrister before I entered Parliament and I remain a non-practising barrister. For completeness, I refer to my entry in the Register of Members’ Financial Interests in that regard. I urge the Minister to accept the amendment.

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

I will speak to new clause 36, but I also fully support everything that the hon. Member for Torfaen has said about amendment 21. I can be very brief, given what he has said. As was revealed earlier, I used to practise as an immigration lawyer; this was a decade ago. Back then, the immigration rules were horrendously complex, but since then there have been hundreds of changes to the immigration rules and they have multiplied in size. I cannot remember what the figure is, but the appendices have just about every letter of the alphabet in their title. The system is ludicrously complex. The issue is not just that the rules are complicated; as we have heard, the evidential requirements are also incredibly complicated.

It is easy enough to say that we hope the settled status scheme is not too complicated, but that is not an end to the matter. It will be complicated for many people to access. People also have to make decisions and understand whether they actually need to apply, and that could be hugely complicated for some people. Some people will not be sure whether they have British nationality. Some people will not understand whether their right to permanent residence under existing EU law means that they do or do not need to apply. There is the situation of Irish citizens, for example, in Northern Ireland. All sorts of people are already asking questions about how this system applies to them. It is not a straightforward matter.

[Stuart C. McDonald]

It is fair to say that MPs can provide some basic help, but they are not immigration lawyers. All hon. Members have to be cautious to ensure that they do not hand out legal advice. A Member might be approached, for example, by someone who is entitled to British citizenship or to register as a British citizen. To set them off down the route of applying for settled status would be to do them a disservice. We have to be very careful. Although the settled status scheme in itself might appear to be reasonably straightforward, that is not the end of the matter.

[Nick Thomas-Symonds]

I would make two points in response to the suggestion that has been made. First, no one should be giving uninsured legal opinions—obviously, that is what a lawyer would have—and, secondly, we are surely not saying that as a consequence of all the legal aid cuts that have been made, Members of Parliament should be picking up the slack when they are not trained to do so.

[Stuart C. McDonald]

Absolutely. Another thing that I will say to the hon. Member for Banff and Buchan is that, thankfully, one benefit of devolution—all those who were opposing devolution earlier should take note—is that people can choose a different path, and in Scotland we have not implemented LASPO. I think that LASPO is one of the most outrageous Acts of Parliament to have gone through this place. Thankfully, in Scotland, people will still be able to obtain immigration advice through legal aid. I strongly urge the hon. Gentleman to use that, rather than potentially getting himself into trouble if he makes mistakes with his immigration advice.

--- Later in debate ---

[Caroline Nokes]

I emphasise the points that I made following the publication of the net migration statistic. A significant proportion of the increase that we have seen is made up of students coming from outside the EU, including significant increases in the numbers of Indian and Chinese students coming to our world-class universities. The hon. Gentleman will know that there is no limit to the number of tier 4 visas that we are happy to issue to genuine students and, in the case of universities, there has been a 10% increase in the past year. That puts the figure in the region of 26% higher than in 2010-11.

In addition—this is very topical in the context of this amendment, since we are discussing health; I am sure this gets me back in order, Sir David—the hon. Gentleman will remember that in July of last year, we lifted the cap on doctors and nurses being able to come in under the tier 2 regulations. There has been a significant increase in the number of doctors and nurses—those working in the health sector—making applications under that system. While I acknowledge the importance of working hard to make sure that we have adequate numbers of UK-trained doctors and nurses, that was a very popular move. It was impressed on us, not only by many political parties but by those in the professions, that it was important that we lift the cap on tier 2 visas for those who work in the NHS.

EEA and Swiss nationals and their family members who are, or become, ordinarily resident in the UK are currently fully entitled to free NHS care, in the same way as a British citizen who is ordinarily resident. That position will not change, regardless of whether the UK leaves the EU with or without a deal. The Government are also currently working to reach agreement at EU level, or through agreements with relevant member states, to continue the reciprocal healthcare arrangements that are already in place and are so beneficial to UK and EU nationals alike while we negotiate our future relationship. We are making progress: we have already agreed reciprocal arrangements with Switzerland, Iceland, Liechtenstein and Norway. Those arrangements safeguard healthcare for the hundreds of thousands of UK nationals who live and work in EU countries, or who require emergency medical treatment each year while on holiday in Europe. They also ensure that EU citizens who are not ordinarily resident in the UK—primarily those on holiday—can receive reciprocal healthcare here.

It is also worth reflecting on the fact that both health and charging for health services are devolved matters. With the exception of new clause 42, these amendments seek to amend devolved health policy. However, the health Ministries in Scotland, Wales and Northern Ireland and the Department of Health and Social Care in England are responsible for setting their own charging policy and making their own regulations.

[Nick Thomas-Symonds]

I am glad that the Minister has come to the topic of devolution of the health service in Wales. It was, of course, somebody Welsh who founded the national health service—Aneurin Bevan—and on the subject of health tourism, which has been raised by the hon. Member for Lewes, Aneurin Bevan said:

“One of the consequences of the universality of the British Health Service is the free treatment of foreign visitors. This has given rise to a great deal of criticism, most of it ill-informed and some of it deliberately mischievous…The fact is, of course, that visitors to Britain subscribe to the national revenues as soon as they start consuming”.

This was, he said, an area in which

“generosity and convenience march together.”

Is that not true?

[Caroline Nokes]

I am not going to criticise the founder of the national health service, who made a huge contribution to our national life in so doing, but it is important to reflect on the fact that in successive general elections people have supported the principle that those who are here on temporary visas should contribute. As I was saying, the devolved authorities do of course have the ability to set their own charging policies and make their own regulations.