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

Paul Blomfield Excerpts

Committee Debate: 10th sitting: House of Commons
Tuesday 5th March 2019 Public Bill Committees

[Paul Blomfield (Sheffield Central) (Lab)]

I am pleased to speak in support of new clauses 15 to 18, and to offer our support to new clauses 33, 35 and 47 to 49.

Mr Stringer, you will no doubt recall, as other hon. Members will, our first Opposition day debate after the referendum in 2016. In that debate, we called on the Government to offer a unilateral guarantee concerning the rights of EU nationals. I am confident that doing so would have led to reciprocal guarantees for UK citizens by the EU27. It would have prevented two and a half years of uncertainty and anxiety for EU nationals and their families, and it would have set off the negotiations on the right tone. In contrast, the Government promised the EU the “row of the summer” over the scheduling of the talks.

We must remember that we are talking about not only the concerns of EU citizens in the UK but, given the principle of reciprocity, the concerns of the 1.2 million Brits in the rest of Europe. It is disappointing that during the entire process, none of the three Secretaries of State for Exiting the European Union has agreed to meet the British in Europe group. The fact that the Government did not secure their onward freedom of movement as part of the withdrawal agreement says an awful lot about their commitment to that important group of UK citizens.

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

My hon. Friend mentions that further evidence is being demanded. Is that not precisely what started to happen with the Windrush scandal, causing so many problems? Is that not why we need as many safeguards as possible in the scheme?

[Paul Blomfield]

My hon. Friend makes a really important point. With the history of the Windrush experience being so close, one would imagine that we would not yet have forgotten its lessons and would seek to apply them in this situation. We tabled the new clauses precisely because of that concern.

It is well known that other problems with the process include its inaccessibility to iPhone users. The Government talked about how easy this process would be—people would be able to do it on their phones—but that is not the case for half of the UK’s adults, who happen to use an iPhone. The inability to develop an app for use on an iPhone does not create a great deal of confidence in the rest of the process or the Home Office’s ability to handle it. People who already have proof of permanent residence are being asked to provide evidence of it, even though they were promised a simple swap to settled status. We need to have local support centres where people can apply offline, but they are not available.

The new clauses would remove the category of pre-settled status. This distinction, whereby an individual must be resident for five years to qualify for settled status, seems to be the result of a copy-and-paste exercise from the rules for permanent residence. A number of the stakeholders from whom the Committee took evidence do not see the rationale for it and believe that it serves no clear purpose. In fact, it creates more bureaucracy for individuals and the Home Office—this morning we discussed how difficult the Home Office sometimes finds it to deal with complicated or even simple procedures.

The Government have already admitted that it will be difficult, if not impossible, to distinguish easily between EU citizens who arrive before and after 29 March, which adds another layer of uncertainty. We can easily foresee the confusion for employers and landlords, who will wonder what different rights apply to the different categories, with detrimental effects for the holders of pre-settled status. I would welcome clarification from the Minister. If it is not simply to mirror the rules on permanent residence, can she explain the rationale for pre-settled status?

New clause 15 sets out other requirements, such as ensuring that applicants are issued with physical documentation of their proof of status. I acknowledge that this replicates new clause 35, which was tabled by the hon. Member for Cumbernauld, Kilsyth and Kirkintilloch East. It is another area where the Home Office will inevitably have to move. The Joint Council for the Welfare of Immigrants and Professor Smismans vividly illustrated not only the administrative hassle of a digital system, but the potential implications for the treatment by what they describe as “private actors” and for

“equal access to work and housing.”

No other immigration status in this country operates exclusively digitally. The Government have said that they want this system to be more user-friendly than the current application process, but members of the3million group have made it absolutely clear that physical proof of their status would improve their experience of the system and provide some much-needed reassurance. I really do not understand why the Government are so resistant to that, and I urge the Minister to take the opportunity on this issue to work with, rather than against, EEA nationals and the people who speak for them. I imagine that this is an area that the Government will have to move on, as they did on the fee—many of us argued for it for a long time before the change was made.

New clause 15 would put on the face of the Bill the Government’s commitment not to levy a fee. For a long time, the Government were insistent on the need to charge £65 for an application. I am sure the Minister will embarrassingly recall that—in a written answer to me—she was not prepared to rule out the £65 fee for victims of modern slavery and trafficking at that stage. I am delighted that the Government moved on the issue. It might have been because of the embarrassment that, at one stage, the European Parliament was even considering covering the cost of the fees on behalf of EU nationals in this country. After campaigning by Opposition Members and other parties, along with the3million and trade unions, it was a good step that the Prime Minister conceded that the application should be free; therefore, the Government should have no issue putting that into the legislation.

New clause 16 details the rights of family members of EEA nationals who are eligible for settled status. New clause 18 would make it explicit that article 8 of schedule 1 of the Human Rights Act 1998—the right to respect for private and family life—applied to holders of settled status and of the work visa for EEA and Swiss nationals dealt with in new clause 21.

On new clause 17, the Government have repeatedly stated that there would be only three criteria for settled status: nationality of a relevant country or a family member, residence in the UK and a criminality check. The rules in the appendix of the Immigration Rules go beyond that; they leave a loophole where someone who is not a serious criminal and otherwise eligible could be denied settled status on the basis of non-exercise of treaty rights. New clause 17 seeks to address this issue. Following legal action from the JCWI, from whom we took evidence, the Government narrowed the rules, but the power still remains. In written answers to me, the Minister has stated:

“the UK has decided, as a matter of domestic policy, to be more generous than the draft Withdrawal Agreement in certain respects. In particular, those applying under the scheme will not be required to show that they meet all the requirements of current free movement rules, such as any requirement to have held comprehensive sickness insurance or generally to detail the exercise of specific rights under EU law, such as the right to work.”

The new clause would enshrine that policy in law.

If the Government do not accept new clause 17, could the Minister explain why they are so intent on wishing to retain a power that they never intend to use?

[Stuart C. McDonald]

I give my support to the new clauses tabled by the hon. Members for Manchester, Gorton and for Sheffield Central, who made a lot of excellent points, including about the need or otherwise for pre-settled status.

This is probably one of the most important debates that we will have in this Committee. We all know that the settled status scheme is a huge undertaking. There is no doubt in my mind that the Home Office is doing its best to implement it to the best of its abilities. I do not question the commitment and effort made to attempt to have that scheme reach as many people as possible. The amendments are not about that, but whether EEA nationals and family members should be required to apply for their rights in the first place.

We are clear that EEA nationals’ rights should be declared in law. They should be able to retain their rights without any need to apply. Instead of applying for the right to remain in what is their home country, instead people would apply for documents simply to evidence that right. After all, that is pretty much the position they are in now: EEA nationals can make the UK their home simply by meeting the qualifying criteria by exercising their EU treaty rights. However, even though they do not need to, many find it very handy to apply for a document that proves they are exercising treaty rights and are allowed to remain here, so they apply for residence documents. Those documents do not give them any extra rights, but are simply convenient. It is far easier to hand a residence document to a landlord than a few months or years of bills, bank statements and wage slips to prove their right to be in the country.

All we are saying is that the same should happen in future. The Bill will strip people of hugely important rights; it should therefore also replace those lost rights with other rights that are granted automatically. All those who meet the Home Office criteria for settled status should be granted it as a matter of law. Applications for settled status documents would then be the means to simply evidence those rights, just in the same way as happens now. All that will become hugely important the day after the deadline for settled status applications passes.

If we do not make these changes, the evidence tells us that hundreds of thousands of people will be here without any status at all. They could, in theory, be removed. The Home Office talks of proportionate responses in allowing those with a reasonable excuse to apply late. However, that is tinkering around the edges. The fact remains that there will still be hundreds of thousands of people here without permission—people who were lawfully resident one day, and unlawfully the next.

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[Caroline Nokes]

As the hon. Gentleman will be aware, the Government are moving to a position of everything being digital by default. We think that the correct way forward. I have enjoyed my exchanges with the3million. The hon. Member for Sheffield Central suggested that I had not adequately engaged with them. I have met them on several occasions and listened to their views, but we do differ on the determination that we have to use the digital status. We believe that any 21st-century Government would want to do that.

[Paul Blomfield]

With my respect for the Minister I would not want it to be suggested that I was misrepresenting her engagement with the3million, and I am aware that she had productive discussions with them. However, there have been critical issues on which she has not been prepared to listen, and the issue of physical status documentation is one of them. It still eludes them, as it eludes us, why the Minister cannot agree to have a physical document available as an option for those who want it.

[Caroline Nokes]

I thank the hon. Gentleman for that suggestion. Just because I disagree, that does not mean that I have not listened. We have made a commitment to digital by default, which I think is the right way forward. I made a point earlier about the challenge of different types of document, and the difficulties that might be presented if some people could produce one sort of document and others were reliant on digital only. I happen to think—perhaps I spent a long six months as the Minister responsible for the Government Digital Service—that this is the right way forward. The Government have always been very clear that this is our direction of travel.

I understand that it represents a cultural change for many, and I am very conscious that many EU member states not only require an identity document to be held at all times, but enforce compulsory identification on request, for instance from police officers. That is very different from the way in which the UK behaves. We do not have those requirements, nor are they part of our culture. Our methods of proving identity and rights do not have to mirror what other countries do.

[Paul Blomfield]

I find it difficult to accept the Minister’s general statement that those are not part of our culture. It has been pretty clear from evidence from employers and landlords that they would find physical documents much easier to deal with. If she is wrong on this, and if we fail in our endeavours to make the amendment, will she agree to the Home Office reviewing the practice within a reasonable period of introducing it?

[Caroline Nokes]

From the demonstrations that I have had of the digital right-to-work check, and the work that I have done with the Landlords Consultative Panel surrounding the digital right to rent checks, we have seen a very simple and straightforward procedure where the individual can send a time-limited link to a prospective employer that does not require them to do a great deal of research to find digital status; it is there at the click of a mouse button. However, I am listening to the views put to me by the Committee, and will reflect on them over the next few weeks.

As I said, the new digital capability forms part of moving the UK’s immigration system to digital by default, and is a simpler, safer and more convenient system. The proposed new clause would be a step backwards in simplifying the current system. I therefore request that the hon. Member for Manchester, Gorton withdraw the new clause.

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[Stuart C. McDonald]

I beg to move, That the clause be read a Second time.

I will be brief. The Minister will know that I have raised various points about non-EEA nationals and derived rights on previous occasions. The new clause would simply ensure that those people were treated on the same basis as EEA or Swiss nationals who reside in the UK, if and when they apply for settled status under the immigration rules.

My understanding is that Chen, Ibrahim and Teixeira carers are all covered by the withdrawal agreement, but Zambrano carers are not. There are also questions about what will happen to all those groups if there is not a deal. In a Westminster Hall debate, the Minister made positive noises about ensuring that their rights are protected, but I am still struggling to find detailed provisions for what will happen to each of those groups. I would appreciate an update on that.

[Paul Blomfield]

I will be even briefer, which I am sure will be generally welcomed. We support the new clause, which concerns an important group of people with derived rights who have been left without certainty about their position. There is a strong imperative for that to be resolved, and for us to extend the same rights to them as to others.

[Caroline Nokes]

I, too, will be as brief as I can. I thank the hon. Members for Cumbernauld, Kilsyth and Kirkintilloch East and for Paisley and Renfrewshire North for their new clause 37, which seeks to give those with a derivative right of residence access to the EU settlement scheme.

It may be helpful if I explain that a derivative right of residence is one that stems from the EU treaties rather than from the free movement directive, and it has been established through Court of Justice of the European Union judgments. The rights identified by the Chen, Ibrahim and Teixeira cases are protected by the draft withdrawal agreement. The rights of Zambrano carers are not protected by the agreement.

The Government have been clear that provision will be made in the immigration rules for individuals currently resident with a derivative right of residence. I fully appreciate that those people need certainty about their status. We are resolving the final details within Government, in consultation with other affected Departments. Subject to securing my colleagues’ agreement, I expect to be able to confirm the position for that cohort in the immigration rules to be laid before Parliament shortly.

In summary, the Government agree that we need to protect the rights of those who are resident here on the basis of derivative rights. We have already committed to making provision for them in the immigration rules, and we are just finalising precisely how we will achieve that. I hope to have further positive news for the hon. Member for Cumbernauld, Kilsyth and Kirkintilloch East shortly. For that reason, I ask him to consider whether it is necessary to press the new clause to a vote.

[Stuart C. McDonald]

I beg to move, That the clause be read a Second time.

Members will be aware that there were some concerns about the terms of the withdrawal agreement in relation to citizens’ rights, including about the apparent requirement for comprehensive sickness insurance. I very much welcome what the Government have said about being more generous in that respect and not requiring evidence of comprehensive sickness insurance. The new clause would simply put that commitment in the Bill.

This ground was largely covered in our debate on new clause 17, including by the hon. Member for Sheffield Central, so I do not need to say much more. We simply seek reassurance from the Minister that that remains the Government’s position and that they have no plans to change it, and ask whether she will consider putting that in the Bill.

[Paul Blomfield]

We support the new clause. The Minister wrote to me and my hon. Friend the Member for Manchester, Gorton to say that the Government have no intention of requiring comprehensive sickness insurance, so I assume they would have no issue with putting it in legislation. If they agreed to do so, they would send a very strong signal of their intentions.

[Caroline Nokes]

I thank the hon. Members for Cumbernauld, Kilsyth and Kirkintilloch East and for Paisley and Renfrewshire North for their new clause 44, which seeks to ensure that the EU settlement scheme does not place a requirement on applicants to hold, or to have held, comprehensive sickness insurance. I welcome the intention of the new clause, but it is not necessary. The Government have been clear from the beginning that we would not be testing for comprehensive sickness insurance. We made that clear as early as June 2017, when we published our public document on safeguarding the position of EU citizens, and the Prime Minister reiterated it in October 2017 in her open letter to EU citizens.

Appendix EU to the immigration rules does not contain a requirement to have held comprehensive sickness insurance, and that will not change. Eligibility for the scheme will continue to be based on residence and not permitted activity. I therefore ask the hon. Member for Cumbernauld, Kilsyth and Kirkintilloch East to withdraw the clause.