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

Paul Blomfield Excerpts

Thursday 14th February 2019 Public Bill Committees

[Mrs Badenoch]

Q Thank you for that. You talked about the flaws of the system. There were bits that you had an input in designing or were extensively consulted on, so something in there must be good. Do you think there is anything in there that could be useful as the basis of a future immigration system? What do you like about the settled status scheme?

Professor Smismans: I will not express myself on the future immigration system. That is not my task. the3million defends the rights of the EU citizens already here. Whatever system is designed for the future is a political choice that we do not have to make, so we do not make any statements on that.

In the same way, we say that ending freedom of movement for the future is a legitimate choice, and that is fine. We can talk about the interpretation of the referendum, as the Minister did before, which I heard from the back, but we usually leave the interpretation of the referendum up to you. However, let me remind you that, before and after the referendum, all parties said that the rights of EU citizens already in the country would be protected, and that everybody who was already here would be able to remain here with the status they already had.

The Bill wipes out those people’s rights completely and leaves it to secondary legislation to sort them out, and also makes them register with an uncertain outcome. That is not the promise that was made by any political party during or after the referendum.

[Paul Blomfield (Sheffield Central) (Lab)]

Q That exchange anticipated my next question, which was going to be about the physical documents. In that discussion, you made the point that you were consulted. You have made a very powerful case on the importance of physical documentation. Presumably, you made that case to the Home Office in the consultation?

Professor Smismans: Yes, we have said repeatedly how important a physical document is and that we want one.

[Paul Blomfield]

Q Did you hear any convincing argument from the Home Office as to why that should not be provided?

Professor Smismans: We have heard arguments that this is the future and that the electronic system will work. Unfortunately, I think that there are inherent risks in the future, and people should be prepared for that.

[Paul Blomfield]

Q May I move to a different area—the right of appeal? You expressed concern about it earlier, and I assume that you also expressed your views about it fairly robustly in consultation with the Home Office. I guess that the Home Office would have said in reply that there was the option to pursue administrative review and judicial review. What was your reaction to that?

Professor Smismans: There are two issues. On the one hand, if there is a withdrawal agreement, it will require a right of appeal—at least, I hope that if there is a withdrawal agreement implementation Bill, that will be one of the things explicit in it. We do not know whether there will be a withdrawal agreement, and from what I hear there is no clear promise that we would get a right of appeal without one. I am an EU lawyer, not an immigration lawyer, so I am relying mainly on what I have heard from my colleagues in immigration, but we know that there have been considerable problems with how administrative review has worked in the past. It means the Home Office having to judge itself. That might be fine as a first access point or a first way to resolve things, if it works, but it is not enough; we need judicial review and the right of appeal on top.

[Jack Brereton (Stoke-on-Trent South) (Con)]

Q Obviously you are here to particularly represent those EU citizens who are currently living in the UK, but may I ask you the same question that I asked some of our panellists this morning about British citizens living in the EU? Do you think that all the EU countries have been doing everything possible and taking adequate steps to guarantee the rights of British citizens living in the EU?

Professor Smismans: No, they definitely have not. That is why it is so important that we get the withdrawal agreement or, if there is no withdrawal agreement, that we get a separate citizens’ rights agreement. What we have been asking for is that the citizens’ rights part of the withdrawal agreement be ring-fenced and adopted. The withdrawal agreement was agreed between the EU Commission and the UK Government; it did not pass in Parliament, but citizens’ rights were not the debated issue. If the withdrawal agreement fails, it will be because of the border between Northern Ireland and Ireland and the wider issue of where the future relationship is going, not because of citizens’ rights.

The best way to safeguard our rights is through the withdrawal agreement or, in the event of the failure of the withdrawal agreement, to have a separate citizens’ rights agreement under article 50. That would mean that British citizens in the European Union were protected at a supranational level; they would not depend on 27 national rules, in the same way that we do not depend just on the UK. It is a kind of balancing act, in the way that there has been a reciprocal solution between the rights of EU citizens here and British citizens in the EU. That would remain in place for that category of people on both sides. That is the best guarantee.

In any case, issues such as social security co-ordination will require international treaties. You can resolve some issues unilaterally or set out some guarantees in primary legislation, but for the issue of British citizens in the EU, doing that would depend on all the countries at a national level. As we have seen recently, there is not much willingness among European Union member states to let the European Union do that. If there is no agreement, it will mainly be up to national solutions in each country. On social security, you would then have to negotiate agreements between the UK and the 27 countries separately. Surely that would not provide the protection that the withdrawal agreement or a separate citizens’ rights agreement could provide.

--- Later in debate ---

[The Chair]

I have four more people wishing to ask questions and 13 minutes.

[Paul Blomfield]

Q I have a more general question on the issue, given your wider brief. When the Home Secretary introduced the Bill to the House, he said that it sought to address people’s concerns about immigration, which were the main factor behind the Brexit vote. Do you think it odd, then, given the division between primary and secondary legislation, that this is essentially an enabling Bill that provides no clarity at all about the future immigration arrangements—what the Home Secretary defined as the critical issue behind the Brexit vote?

Joe Owen: Obviously, the Bill is accompanied by the White Paper. In comparison with a lot of the Brexit White Papers for the big Brexit Bills that are coming through, it is probably the meatiest in terms of setting out what life after Brexit will look like in the policy area. In comparison with things such as trade or customs, where there is a huge uncertainty—

[Paul Blomfield]

Critical issues such as the tier 2 salary cap have deliberately gone out to consultation, however, because there is no agreement within the Cabinet about what that should look like.

Joe Owen: There are bits that are still up for grabs, but in comparison with a lot of other areas, we have a clearer vision of the detail of the policy for after Brexit. There is an interesting question, between the Bill and the White Paper, about the vision and strategy—what is immigration for, after Brexit? That question is still missing and has been missing for quite a long time. The last immigration White Paper was in 2006, I think, and there has never really been a discussion about the aims and objectives of the immigration system.

In the most recent White Paper, there are conversations about salary thresholds and regulated qualifications framework levels, and quite detailed policy questions. At the front, in terms of aims and objectives, there are two pages that talk about being fair and balanced and working for the whole UK, but with no real idea of what that means and what the system is supposed to achieve. There is that gap. In terms of whether the Bill is quiet on the big issue, I think the White Paper is there.

There is a question about what the Bill should say about citizens’ rights, if anything. It is fair that, given what is in the withdrawal agreement as it stands, and the fact that it is a key part of the negotiation, it makes sense that that sits in the withdrawal agreement Bill, not least because there are some things in there about the precedent of EU law and so on, which is all best dealt with in a single case. If there is no contention—I have not heard much in the UK Parliament, I have heard nothing in the EU and I have heard nothing between the UK and the EU about disagreement with the citizens’ rights part of the withdrawal agreement—why has the withdrawal agreement Bill not been published in draft, or at least the areas that cover citizens’ rights? That would be a way of setting out in more detail what is likely to come down the track, for those who are uncertain about what is missing in this Bill, even if it is in draft and only covers certain sections of the withdrawal agreement.

[Eleanor Smith]

Q You mentioned the Americans and the figure of 45%, and we keep saying that it is realistic that we are trying to get 95%. Is that realistic? How is it feasible for the Home Office to do that in two years?

Joe Owen: It is very unrealistic that there will be 100%, although I may come to regret saying that. Considering that we do not entirely know how many EU citizens are in the UK and exactly where they are, trying to target them is a huge challenge. You have already heard from a number of people about the can’ts, the don’ts and the won’ts. There will be some who cannot get status, even if they want to, because they do not have the right information, they cannot access the internet or for other valid reasons. There will be the don’ts—children or elderly people, for example—who do not know that they need to apply. Then there are the won’ts, who are the people who say, “I completely disagree with this as a policy; I think it is ridiculous and I am not going to do it as a matter of principle.”

Those people will exist. The first two categories are likely to be filled with more vulnerable people, as previous people giving evidence have attested. There needs to be a recognition that designing for 100% is the wrong way to go. The right way to go is to make sure that there are sufficient safeguards and clarity in the system about what happens to people who do not have settled status at the end of the two years, possibly for very good reasons, and what will happen to those who we think do not have good reasons as to why they do not have settled status. Having clarity about what will happen to those people—they will inevitably exist—at the back end of the two years is really important.