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

Baroness Winterton of Doncaster Excerpts

Report stage & Report stage: House of Commons
Tuesday 30th June 2020 Commons Chamber

[Madam Deputy Speaker (Dame Rosie Winterton)]

With this it will be convenient to discuss the following:

New clause 2—Children in care and children entitled to care leaving support: Entitlement to remain—

‘(1) Any child who has their right of free movement removed by the provisions contained in this Act, and who are in the care of a local authority, or entitled to care leaving support, shall, by virtue of this provision, be deemed to have and be granted automatic Indefinite Leave to Remain within the United Kingdom under the EU Settlement Scheme.

(2) The Secretary of State must, for purposes of subsection (1), issue guidance to local authorities in England, Scotland, Wales and Norther Ireland setting out their duty to identify the children of EEA and Swiss nationals in their care or entitled to care leaving support.

(3) Before issuing guidance under this section the Secretary of State must consult—

(a) the relevant Scottish Minister;

(b) the relevant Welsh Minister; and

(c) the relevant Northern Ireland Minister.

(4) The Secretary of State must make arrangements to ensure that personal data relating to nationality processed by local authorities for purposes of identification under subsection (1) is used solely for this purpose and no further immigration control purpose.

(5) Any child subject to subsection (1) who is identified and granted status after the deadline of the EU Settlement Scheme (“the Scheme”) will be deemed to have had such status and all rights associated with the status from the time of the Scheme deadline.

(6) This section comes into force upon the commencement of this Act and remains in effect for 5 years after the deadline of the EU Settlement Scheme.

(7) For purposes of this section, “children in the care of the local authority” are defined as children receiving care under any of the following—

(a) section 20 of the Children Act 1989 (Provision of accommodation for children: general);

(b) section 31 of the Children Act 1989 (Care and Supervision);

(c) section 75 Social Services and Well-being (Wales) Act 2014 (General duty of local authority to secure sufficient accommodation for looked after children);

(d) section 25 of the Children (Scotland) Act 1995 (Provision of accommodation for children);

(e) Article 25 of the Children (Northern Ireland) Order 1995 (Interpretation); and

(f) Article 50 Children of the (Northern Ireland) Order 1995 (Care orders and supervision orders).

(8) For the purposes of this section, “children entitled to care leaving support” means a child receiving support under any of the following—

(a) paragraph 19B of Schedule 2 Children Act 1989 (Preparation for ceasing to be looked after);

(b) s.23A(2) Children Act 1989 (The responsible authority and relevant children);

(c) s.23C(1) Children Act 1989 (Continuing functions in respect of former relevant children);

(d) section 104 of the Social Services and Well-being (Wales) Act 2014 (Young people entitled to support under sections 105 to 115);

(e) sections 29-30 Children (Scotland) Act 1995 (Advice and assistance for young persons formerly looked after by local authorities) as amended by s.66 Children and Young People (Scotland) Act 2014 (Provision of aftercare to young people); and

(f) Article 35(2) Children (Northern Ireland) Order 1995 (Persons qualifying for advice and assistance.).’

This new clause aims to ensure that the children of EEA and Swiss nationals who are in care, and those who are entitled to care leaving support, are granted automatic Indefinite Leave to Remain under the EU Settlement Scheme to ensure they do not become undocumented.

New clause 7—Time limit on immigration detention for EEA and Swiss nationals—

‘(1) For the purpose of this section, a person (“P”) is defined as any person who, immediately before the commencement of Schedule 1, was—

(a) any person who, immediately before the commencement of Schedule 1, was—

(i) residing in the United Kingdom in accordance with the Immigration (European Economic Area) Regulations 2016;

(ii) residing in the United Kingdom in accordance with a right conferred by or under any of the other instruments which is repealed by Schedule 1; or

(iii) otherwise residing in the United Kingdom in accordance with any right derived from European Union law which continues, by virtue of section 4 of the EU Withdrawal Act 2018, to be recognised and available in domestic law after exit day.

(2) The Secretary of State may not detain any person (“P”) as defined in subsection(1) under a relevant detention power for a period of more than 28 days from the relevant time.

(3) If “P” remains detained under a relevant detention power at the expiry of the period of 28 days then—

(a) the Secretary of State shall release P forthwith; and

(b) the Secretary of State may not re-detain P under a relevant detention power thereafter, unless the Secretary of State is satisfied that there has been a material change of circumstances since “P’s” release and that the criteria in section [Initial detention: criteria and duration (No. 2)] are met.

(4) In this Act, “relevant detention power” means a power to detain under—

(a) paragraph 16(2) of Schedule 2 to the Immigration Act 1971 (detention of persons liable to examination or removal);

(b) paragraph 2(1), (2) or (3) of Schedule 3 to that Act (detention pending deportation);

(c) section 62 of the Nationality, Immigration and Asylum Act 2002 (detention of persons liable to examination or removal); or

(d) section 36(1) of UK Borders Act 2007 (detention pending deportation).

(5) In this Act, “relevant time” means the time at which “P” is first detained under a relevant detention power.

(6) This section does not apply to a person in respect of whom the Secretary of State has certified that the decision to detain is or was taken in the interests of national security.’

New clause 8—Initial detention: criteria and duration (No. 2)—

‘(1) The Secretary of State may not detain any person (“P”) to whom section [Time limit on immigration detention for EEA and Swiss nationals] applies, under a relevant detention power other than for the purposes of examination, unless the Secretary of State is satisfied that—

(a) “P” can be shortly removed from the United Kingdom;

(b) detention is strictly necessary to affect “P”’s deportation or removal from the United Kingdom; and

(c) the detention of “P” is in all circumstances proportionate.

(2) The Secretary of State may not detain any person (“P”) who section [Time limit on detention for EEA and Swiss nationals] applies to under a relevant detention power for a period of more than 96 hours from the relevant time, unless—

(a) “P” has been refused bail at an initial bail hearing in accordance with subsection (5)(b) of section [Bail hearings (No. 2)]; or

(b) the Secretary of State has arranged a reference to the Tribunal for consideration of whether to grant immigration bail to “P” in accordance with subsection (2)(c) of section [Bail hearings (No. 2)] and that hearing has not yet taken place.

(3) Nothing in subsection (2) shall authorise the Secretary of State to detain “P” under a relevant detention power if such detention would, apart from this section, be unlawful.

(4) In this section, “Tribunal” means the First-Tier Tribunal.

(5) In this section, “relevant detention power” has the meaning given in section [Time limit on detention for EEA and Swiss nationals].’

New clause 9—Bail hearings (No. 2)—

‘(1) This section applies to any person (“P”) to whom section [Time limit on immigration detention for EEA and Swiss nationals] applies and who is detained under a relevant detention power.

(2) Before the expiry of a period of 96 hours from the relevant time, the Secretary of State must—

(a) release “P”;

(b) grant immigration bail to “P” under paragraph 1 of Schedule 10 to the Immigration Act 2016; or

(c) arrange a reference to the Tribunal for consideration of whether to grant immigration bail to “P”.

(3) Subject to subsection (4), when the Secretary of State arranges a reference to the Tribunal under subsection (2)(c), the Tribunal must hold an oral hearing (“an initial bail hearing”) which must commence within 24 hours of the time at which the reference is made.

(4) If the period of 24 hours in subsection (3) ends on a Saturday, Sunday or Bank holiday, the Tribunal must hold an initial bail hearing on the next working day.

(5) At the initial bail hearing, the Tribunal must—

(a) grant immigration bail to “P” under paragraph 1 of Schedule 10 to the Immigration Act 2016; or

(b) refuse to grant immigration bail to “P”.

(6) Subject to subsection (7), the Tribunal must grant immigration bail to “P” at a bail hearing unless it is satisfied that the Secretary of State has established that the criteria in subsection 1 of section [Initial detention: criteria and duration (No. 2)] are met and that, in addition—

(a) directions have been given for “P’s” removal from the United Kingdom and such removal is to take place within 14 days;

(b) a travel document is available for the purposes of “P’s” removal or deportation; and

(c) there are no outstanding legal barriers to removal.

(7) Subsection (6) does not apply if the Tribunal is satisfied that the Secretary of State has established that the criteria in subsection 1 of section [Initial detention: criteria and duration (No. 2)] above are met and that there are very exceptional circumstances which justify maintaining detention.

(8) In subsection (6) above, “a bail hearing” includes—

(a) an initial bail hearing under subsection (2) above; and

(b) the hearing of an application for immigration bail under paragraph 1(3) of Schedule 10 of the Immigration Act 2016.

(9) In this section, “Tribunal” means the First-Tier Tribunal.

(10) The Secretary of State shall provide to “P” or “P’s” legal representative, not more than 24 hours after the relevant time, copies of all documents in the Secretary of State’s possession which are relevant to the decision to detain.

(11) At the initial bail hearing, the Tribunal shall not consider any documents relied upon by the Secretary of State which were not provided to “P” or “P’s” legal representative in accordance with subsection (10), unless—

(a) “P” consents to the documents being considered; or

(b) in the opinion of the Tribunal there is a good reason why the documents were not provided to “P” or to “P’s” legal representative in accordance with subsection (10).

(12) The Immigration Act 2016 is amended as follows—

(a) After paragraph 12(4) of schedule 10 insert—

“(4A) Sub-paragraph (2) above does not apply if the refusal of bail within the meaning of section [Bail hearings (No. 2)] of the Immigration and Social Security Co-ordination (EU Withdrawal) Act 2019.”’

New clause 10—Commencement of detention provisions (No. 2)—

‘Sections[Time limit on immigration detention for EEA and Swiss Nationals],[Initial detention: criteria and duration (No. 2)]and[Bail hearings (No. 2)]come into force six months after the day on which this Act is passed.’

New clause 11—Report on the impact to EEA and Swiss nationals—

‘(1) This Act shall not come into effect until a Minister of the Crown has laid a report before each House of Parliament setting out the impact of the Act on EEA and Swiss nationals in the UK.

(2) A report under subsection (1) must consider—

(a) the impact on EEA and Swiss nationals of having no recourse to public funds under Immigration Rules;

(b) the impact of NHS charging for EEA and Swiss nationals;

(c) the impact of granting citizenship to all EEA and Swiss health and social care workers working in the UK during the Covid-19 pandemic;

(d) the impact of amending the Immigration and Nationality (Fees) Regulations 2018 to remove all fees for applications, processes and services for EEA and Swiss nationals; and

(e) the merits of the devolution of powers over immigration from the EEA area and Switzerland to (i) Senedd Cymru; (ii) the Scottish Parliament; and (iii) the Northern Ireland Assembly.

(3) A Minister of the Crown must, not later than six months after the report has been laid before Parliament, make a motion in the House of Commons in relation to the report.

(4) In this section, “health and social care workers” includes doctors, nurses, midwives, paramedics, social workers, care workers, and other frontline health and social care staff required to maintain the UK’s health and social care sector.’

This new clause would ensure that before this Act coming into force, Parliament would have a chance to discuss how EEA and Swiss nationals will be affected by its provisions, including no recourse to public funds conditions, NHS charging, the possibility of granting British citizenship to non-British health and social care workers, removing citizenship application fees and the potential devolution of immigration policy of EEA and Swiss nationals to Wales, Scotland and Northern Ireland.

New clause 12—Status of Irish citizens—

‘In addition to any rights enjoyed by virtue of their Irish citizenship under UK law, Irish citizens must be treated as having all rights enjoyed by persons with settled status under the EU Settlement Scheme.’

This new clause will ensure that Irish citizens enjoy the same rights in the UK as someone with settled status under the EU Settlement Scheme.

New clause 13—Exemption from no recourse to public funds—

‘(1) This section applies during the current Covid- 19 pandemic, as defined by the World Health Organisation on 11 March 2020.

(2) Section 3(1)(c)(i) and (ii) of the Immigration Act 1971 cannot be applied to persons who have lost rights because of section (1) and Schedule 1 of this Act.

(3) This section could not be disapplied unless a resolution was passed by each House of Parliament.’

This new clause would delay application of No Recourse to Public Funds rules during the current pandemic and until such time as Parliament decides.

New clause 14—Immigration Health Charge: Exemption for EEA and Swiss citizens who are healthcare and social workers—

‘(1) The Immigration Act 2014 is amended as follows.

(2) After section 38 (Immigration health charge) insert—

“38A Health care workers and social workers from the EEA or Switzerland

(1) Any person who but for the provisions of the Immigration and Social Security Co-ordination (EU Withdrawal) Act 2020 would have the right of free movement is exempt from the Immigration health charge if that person is—

(a) a healthcare worker; or

(b) a social care worker.

(2) The exemption will also apply to a person who is a family member or dependant of an EEA or Swiss national who meets the conditions in section (1)(a) and (b).

(3) For this section—

“healthcare worker” means a worker who works in a healthcare setting within and outside the NHS who may come into contact with patients, including clinical administration staff, and care home staff;

“social care worker” means a worker as defined by section 55(2) of the Care Standards Act 2000.’

This new clause would ensure that EEA and Swiss nationals coming to the UK to work as a healthcare or social care worker would be exempt from the Immigration Health Charge.

New clause 15—Tier 2 Immigration skills charge—

‘No Tier 2 Immigrations skills charge will be payable on an individual who is an EEA or Swiss national and is coming to the UK to work for the NHS.’

This new clause would exempt NHS employers from having to pay the immigration skills charge.

New clause 16—Immigration health charge—

‘No immigration health charge introduced under section 38 of the Immigration Act 2014 may be imposed on an individual who is an EEA or Swiss national.’

This new clause would prevent EEA or Swiss nationals paying the immigration health charge.

New clause 17—Report on cost of recruitment—

‘(1) The Secretary of State must lay before Parliament a report setting out the costs associated with the recruitment of overseas workers to the UK as compared to such other countries the Secretary of State considers appropriate.

(2) The report must also set out the Secretary of State’s assessment of the impact of the costs referred to in subsection (1) on different sectors of the economy.

(3) No regulations relating to costs for the recruitment of overseas workers may be made until such time as the report has been laid before Parliament and debated.

(4) In this section “costs” include, but are not limited to, the following in relation to the UK—

(a) fees paid by an employer to register as a Tier 2 sponsor;

(b) visa fees paid by a Tier 2 worker and family members;

(c) immigration health surcharges for Tier 2 workers and family members;

(d) the immigration skills charge

(e) recruitment costs; and

(f) legal costs,

and in relation to other countries, includes such fees and costs as the Secretary of State believes equivalent or otherwise relevant.

(5) “Overseas worker” means a worker whose right to work in the UK have been impacted by section 1 and schedule 1.’

This new clause would mean Parliament is aware of costs relating to recruitment of EEA workers to the UK compared with competitor countries, before it has to consider any regulations on fees tabled by the government.

New clause 18—Hostile environment—

‘(1) For the purpose of this section, a person (“P”) is defined as any person who, immediately before the commencement of Schedule 1, was—

(a) residing in the United Kingdom in accordance with the Immigration (European Economic Area) Regulations 2016;

(b) residing in the United Kingdom in accordance with a right conferred by or under any of the other instruments which is repealed by Schedule 1; or

(c) otherwise residing in the United Kingdom in accordance with any right derived from European Union law which continues, by virtue of section 4 of the EU Withdrawal Act 2018, to be recognised and available in domestic law after exit day.

(2) Regulations under section 4(1) may not be made until the Government has brought forward legislative measures to ensure that hostile environment measures do not apply to P, specifically—

(a) sections 20-43 and 46-47 of the Immigration Act 2014;

(b) sections 34-45 of the Immigration Act 2016; and

(c) schedule 2, paragraph 4 of the Data Protection Act 2018.’

This new clause seeks to limit the application of the hostile environment.

New clause 19—Data Protection—

‘(1) For the purpose of this section, a person (“P”) is defined as any person who, immediately before the commencement of Schedule 1, was—

(a) residing in the United Kingdom in accordance with the Immigration (European Economic Area) Regulations 2016;

(b) residing in the United Kingdom in accordance with a right conferred by or under any of the other instruments which is repealed by Schedule 1; or

(c) otherwise residing in the United Kingdom in accordance with any right derived from European Union law which continues, by virtue of section 4 of the EU Withdrawal Act 2018, to be recognised and available in domestic law after exit day.

(2) Regulations under section 4(1) may not be made until the Government has made provision to ensure that P has safe and confidential access to essential public services by ensuring The Secretary of State, or any other individual or body on his behalf, must not process personal data, by any means, for the purposes of immigration control or enforcement, where that personal data has been collected in the course of the data subject accessing or attempting to access the public services identified in subsection (3).

(3) For the purposes of subsection (2), the relevant public services are:

(a) primary and secondary healthcare services;

(b) primary and secondary education; and

(c) the reporting of a crime by the data subject or, where the data subject is a witness to, or the victim of, the crime, any investigation or prosecution of it.

(4) The prohibitions contained in subsections (2) and (3) do not apply where the data subject has given his or her explicit and informed consent to the disclosure of the personal data, for the purposes of immigration enforcement.’

This new clause seeks to limit use of data gathered by key public services for immigration enforcement control.

New clause 20—Recourse to public funds—

‘(1) For the purpose of this section, a person (“P”) is defined as any person who, immediately before the commencement of Schedule 1, was—

(a) residing in the United Kingdom in accordance with the Immigration (European Economic Area) Regulations 2016;

(b) residing in the United Kingdom in accordance with a right conferred by or under any of the other instruments which is repealed by Schedule 1; or

(c) otherwise residing in the United Kingdom in accordance with any right derived from European Union law which continues, by virtue of section 4 of the EU Withdrawal Act 2018, to be recognised and available in domestic law after exit day.

(2) Regulations under section 4(1) may not be made until the Government has brought forward legislative measures to ensure that P can access social security benefits, where P is habitually resident, including repealing or amending the following provisions insofar as they relate to P—

(a) section 3(1)(c)(ii) of the Immigration Act 1971;

(b) section 115 of the Immigration and Asylum Act 1999;

(c) any provision in subordinate legislation, which imposes a “no recourse to public funds” condition on grants of limited leave to enter or remain; and

(d) any other enactment or power exercised under any other enactment, which makes immigration status a condition to access social security benefits.’

This new clause seeks to restrict measures prohibiting access to public funds.

New clause 21—British Citizen registration fee—

‘(1) No person, who has at any time exercised any of the rights for which Schedule 1 makes provision to end, may be charged a fee to register as a British citizen that is higher than the cost to the Secretary of State of exercising the function of registration.

(2) No child of a person who has at any time exercised any of the rights for which Schedule 1 makes provision to end may be charged a fee to register as a British citizen if that child is receiving the assistance of a local authority.

(3) No child of a person who has at any time exercised any of the rights for which Schedule 1 makes provision to end may be charged a fee to register as a British citizen that the child or the child’s parent, guardian or carer is unable to afford.

(4) The Secretary of State must take steps to raise awareness of people to whom subsection (1) applies of their rights under the British Nationality Act 1981 to register as British citizens.’

This new clause would mean that nobody whose right of free movement was removed by the Bill could be charged a fee for registering as a British citizen that was greater than the cost of the registration process and would abolish the fee for some children.

New clause 22—Visa requirements—

‘Section E-LTRP.3.1 of Appendix FM of the Immigration Rules will not apply to persons who have lost free movement rights under section 1 and schedule 1 until the Coronavirus Act 2020 expires as set out under section 89(1).’

This new clause will ensure that EEA and Swiss nationals are not prevented from qualifying to remain in the UK as partners, merely because they cannot meet financial requirements in the Immigration Rules during the coronavirus pandemic.

New clause 23—Amendment of the Scotland Act 1998—

‘(1) The Scotland Act 1998 is amended as follows.

(2) In Schedule 5, at paragraph B6, delete the words “free movement of persons within the European Economic Area;”.

(3) In Schedule 5, at paragraph B6, insert at the end—

“(none) Retained EU law relating to free movement of persons from the European Economic Area; and the subject matter of section 1 and schedule 1 of the Immigration and Social Security Co-ordination (EU Withdrawal) Act 2020.”’

This new clause would devolved retained free movement law and the subject matter of clause 1 and schedule 1 of the Bill to the Scottish Parliament.

New clause 24—Remote Areas Pilot Scheme—

‘(1) Within 6 months of this Act receiving Royal Assent, the government must introduce a Remote Areas Pilot Scheme to encourage EEA and Swiss nationals to live and work in remote areas.

(2) The scheme in subsection (1) must be designed in consultation with the Northern Ireland Executive, the Scottish Government and the Welsh Government.

(3) The scheme in subsection (1) must operate for at least two years after which an evaluation report must be published and laid before both Houses of Parliament.

(4) A Minister of the Crown must make a motion in the House of Commons in relation to the report.’

This new clause would require the government to introduce a Remote Areas Pilot Scheme, similar to the recommendations of the Migration Advisory Committee.

New clause 26—Right to rent (EEA and Swiss nationals)—

‘The Secretary of State must make provision to ensure that EEA and Swiss nationals, and dependants of EEA and Swiss nationals, are not subjected to right to rent immigration checks.’

This new clause would require the Secretary of State to ensure that landlords do not carry out immigration checks on EEA and Swiss nationals under the Right to Rent scheme.

New clause 28—Data protection: immigration (EEA and Swiss nationals)—

‘(1) The Data Protection Act 2018 is amended in accordance with subsection (2).

(2) In paragraph 4 of schedule 2, after sub-paragraph (4) insert—

“(5) This paragraph does not apply if the data subject is an EEA or Swiss national or a dependent of an EEA or Swiss national.”’

This new clause would ensure that the immigration exemption in the Data Protection Act 2018 does not apply to EEA or Swiss nationals.

New clause 29—Family reunion and resettlement—

‘(1) The Secretary of State must make provision to ensure that an unaccompanied child, spouse or vulnerable or dependant adult who has a family member who is legally present in the United Kingdom has the same rights to be reunited in the United Kingdom with that family member as they would have had under Commission Regulation (EU) No. 604/2013.

(2) The Secretary of State must, within a period of six months beginning with the day on which this Act is passed—

(a) amend the Immigration Rules in order to preserve the effect in the United Kingdom of Commission Regulation (EU) No. 604/2013 for the family reunion of unaccompanied minors, spouses and vulnerable or dependant adults; and

(b) lay before both Houses of Parliament a strategy for ensuring the continued opportunity for relocation to the UK of unaccompanied children present in the territory of the EEA, if it is in the child’s best interests.

(3) For the purposes of this section, “family member”—

(a) has the same meaning as in Article 2(g) of Commission Regulation (EU) No. 604/2013;

(b) also has the same meaning as “relative” as defined in Article 2(h) of Commission Regulation (EU) No. 604/2013; and

(c) also includes the family members referred to in Article 8 (1), Article 16 (1) and 16 (2) of Commission Regulation (EU) No. 604/2013.

(4) Until such time as Regulations in subsection (2) come into force, the effect of Commission Regulation (EU) No 604/2013 for the family reunion of unaccompanied minors, spouses and vulnerable or dependent adults with their family members in the UK shall be preserved.’

This new clause would have the effect of continuing existing arrangements for unaccompanied asylum-seeking children, spouses and vulnerable adults to have access to family reunion with close relatives in the UK.

New clause 30—Impact assessment on the social care workforce—

‘(1) No Minister of the Crown may appoint a day for the commencement of any provision of this Act until the condition in subsection (2) is met.

(2) This condition is that a Minister of the Crown has published and laid before both Houses of Parliament an assessment of the impact of the Act on recruitment of EU citizens, EEA nationals, and Swiss citizens to the social care sector.’

This new clause makes the coming into force of the Act conditional on the production of an impact assessment of the changes on the social care workforce

New clause 32—Non-applicability of hostile environment measures to EU citizens, EEA nationals and Swiss citizens—

‘(1) No amendment to the definition of ‘relevant national’ in section 21 of the Immigration Act 2014, so as to alter the provision made for a national of an EEA State or a national of Switzerland, may be made by regulations under—

(a) Section 8, Section 23 and paragraph 21 of Schedule 7 of the European Union (Withdrawal) Act 2018;

(b) Section 14 of the European Union (Withdrawal Agreement) Act 2020; or

(c) Section 4 of this Act.

(2) In Paragraph 4 of Schedule 2 of the Data Protection Act 2018 (“Immigration”)

(a) Omit “.” at the end of sub-paragraph (4),

(b) At the end of sub-paragraph (4), insert—

“, and

(5) Sub-paragraphs (1) and (3) do not apply where the personal data is that of a national of an EU Member State, an EEA State or Switzerland.”

(3) This section comes into force on the day on which this Act is passed.’

This new clause would prevent the application of key aspects of the hostile/compliant environment to EU, EEA and Swiss citizens.

New clause 33—Differentiated immigration rules—

‘(1) The Secretary of State must publish and lay before Parliament a report on the implementation of a system of differentiated immigration rules for people whose right of free movement is ended by section 1 and schedule 1 of this Act within six months of the passing of this Act.

(2) The review in subsection (1) must consider the following—

(a) whether Scottish Ministers, Welsh Ministers, and the Northern Ireland Executive should be able to nominate a specified number of EEA and Swiss nationals for leave to enter or remain each year;

(b) the requirements that could be attached to the exercise of any such power including that the person lives and, where appropriate, works in Scotland, Wales or Northern Ireland and such other conditions as the Secretary of State believes necessary;

(c) the means by which the Secretary of State could retain the power to refuse to grant leave to enter or remain on the grounds that such a grant would—

(i) not be in the public interest, or

(ii) not be in the interests of national security;

(d) how the number of eligible individuals allowed to enter or remain each year under such a scheme could be agreed annually by Scottish Ministers, Welsh Ministers and the Northern Ireland Executive and the Secretary of State; and

(e) whether Scottish Ministers, Welsh Ministers, and the Northern Ireland Executive should be able to issue Scottish, Welsh and Northern Irish Immigration Rules, as appropriate, setting out the criteria by which they will select eligible individuals for nomination, including salary thresholds and financial eligibility.

(3) As part of the review in subsection (1), the Secretary of State must consult—

(a) the Scottish Government;

(b) the Welsh Government;

(c) the Northern Ireland Executive; and

(d) individuals, businesses, and other organisations in the devolved nations’.

This new clause would require the Secretary of State to publish and lay a report before Parliament on differentiated immigration rules for people whose right of free movement are ended by this Act, and sets out a non-exhaustive list of issues that must be reviewed including the possible role of devolved government.

New clause 34—Late applications—

‘(1) Prior to the deadline for applications to the EU Settlement Scheme, the Secretary of State must publish a report setting out proposals for dealing with late applications and a motion to approve the report must be debated and approved by both Houses of Parliament.

(2) Until the report under subsection (1) is debated and approved by both Houses of Parliament, the EU Settlement Scheme must remain open for applications and the Secretary of State must extend the deadline for applications accordingly.’

The new clause will ensure that the EU Settled Status Scheme will remain open until such time as the Minister has published his proposals as to how to deal with late applications and that report has been approved by Parliament.

New clause 35—Visa extensions for health and care workers during Covid-19 pandemic—

‘(1) Where—

(a) A person (“P”) meets either the condition in subsection (2) or the condition in subsection (3); and

(b) P’s leave in the United Kingdom would otherwise expire prior to 1 January 2021,

then P’s leave is extended until twelve months after the date on which P’s leave would otherwise expire without any further fee or charge being incurred.

(2) The condition in this subsection is that the individual is a health and care professional, or a social worker, or employed in another frontline health and care role.

(3) The condition in this subsection is that the individual is a family member of a person meeting the condition in subsection (2).

(4) In this section—

“health and care professional” is a person within the class of persons who are nurses or other health and care professionals, or medical professionals within the meaning of the regulations referred to in sections 2 to 5 of the Coronavirus Act 2020;

“social worker” is a person within the class of persons who are social workers within the meaning of the regulations referred to in sections 6 to 7 of the Coronavirus Act 2020.”

“employed in another frontline health and care role” means a person employed in a role conferring eligibility for the NHS and Social Care Coronavirus Life Assurance Scheme 2020.’

This new clause would put the Government’s policy of visa extensions on a statutory footing, and ensure that it includes all health and social care workers and other frontline employees including cleaners and porters.

New clause 36—Applications for citizenship from people with settled status—

‘Where a person with settled status applies for British Citizenship, then the period of person’s residence that qualified them for settled status shall be treated as not being in breach of the immigration laws.’

This new clause would ensure that persons who qualified for settled status cannot then be refused citizenship on ground that their residence during the qualifying period for settled status was in breach of immigration laws (for example, because of a period without Comprehensive Sickness Insurance).

New clause 37—Annual report on skills and the labour market—

‘(1) Within six months of this Act coming into force, and every 12 months thereafter, the Secretary of State must publish and lay a report before Parliament setting out how changes made to the Immigration Rules for EEA and Swiss nationals have affected skill shortages in the labour market.

(2) A Minister of the Crown must, not later than a month after the report has been laid before Parliament, make a motion in the House of Commons in relation to the report.’

This new clause would ensure that the Government has to publish an annual report on skill shortages and the labour market, and that it would be debated in Parliament.

New clause 38—European citizens’ rights—

‘(1) This section applies to EEA and Swiss nationals—

(a) who are within the personal scope of the withdrawal agreement (defined in Article 10) having the right to reside in the United Kingdom; or

(b) to whom the provisions in (a) do not apply but who are eligible for indefinite leave to enter or remain or limited leave to enter or remain by virtue of residence scheme immigration rules.

(2) A person has settled status in the United Kingdom if that person meets the criteria set out in ‘Eligibility for indefinite leave to enter or remain’ or ‘Eligibility for limited leave to enter or remain’ in Immigration Rules Appendix EU.

(3) A person with settled status holds indefinite leave to enter or remain and has the rights provided by the withdrawal agreement for those holding permanent residence as defined in Article 15 of the agreement, even if that person is not in employment, has not been in employment or has no sufficient resources or comprehensive sickness insurance.

(4) The Secretary of State must by regulations made by statutory instrument make provision—

(a) implementing Article 18(4) of the withdrawal agreement (right of eligible citizens to receive a residence document), including making provision for a physical document providing proof of residence;

(b) implementing Article 17(4) of the EEA EFTA separation agreement (right of eligible citizens to receive a residence document) including making provision for a physical document providing proof of residence; and

(c) implementing Article 16(4) of the Swiss citizens’ rights agreement (right of eligible citizens to receive a residence document), including making provision for a physical document providing proof of residence.

(5) A person with settled status does not lose the right to reside for not having registered their settled status.

(6) A person who has settled status who has not registered their settled status by 30 June 2021 or any later date decided by the Secretary of State may register at any time after that date under the same conditions as those registering prior to that date.

(7) After 30 June 2021 or any later date decided by the Secretary of State, a person or their agent may require proof of registration of settled status under conditions prescribed by the Secretary of State in regulations made by statutory instrument, subject to subsections (8) to (10).

(8) Any person or their agent who is allowed under subsection (7) to require proof of registration has discretion to establish by way of other means than proof of registration that the eligibility requirements for settled status under the provisions of this section have been met.

(9) When a person within the scope of this section is requested to provide proof of registration of settled status as a condition to retain social security benefits, housing assistance, access to public services or entitlements under a private contract, that person shall be given a reasonable period of at least three months to initiate the registration procedure set out in this section if that person has not already registered.

(10) During the reasonable period under subsection (9), and subsequently on the provision of proof of commencement of the registration procedure and until a final decision on registration on which no further administrative or judicial recourse is possible, a person cannot be deprived of existing social security benefits, housing assistance, access to public services or private contract entitlements on the grounds of not having proof of registration.

(11) The regulations adopted under subsection (7) must apply to all persons defined in subsection (1).

(12) A statutory instrument containing regulations under this section may not be made unless a draft instrument has been laid before and approved by a resolution of each House of Parliament.

(13) In this section—

“EEA EFTA separation agreement” means (as modified from time to time in accordance with any provision of it) the Agreement on arrangements between Iceland, the Principality of Liechtenstein, the Kingdom of Norway and the United Kingdom of Great Britain and Northern Ireland following the withdrawal of the United Kingdom from the European Union, the EEA Agreement and other agreements applicable between the United Kingdom and the EEA EFTA States by virtue of the United Kingdom’s membership of the European Union;

“residence scheme immigration rules” has the meaning defined in section 17 of the European Union (Withdrawal Agreement) Act 2020;

“Swiss citizens’ rights agreement” means (as modified from time to time in accordance with any provision of it) the Agreement signed at Bern on 25 February 2019 between the United Kingdom of Great Britain and Northern Ireland and the Swiss Confederation on citizens’ rights following the withdrawal of the United Kingdom from— (a) the European Union, and (b) the free movement of persons agreement;

“withdrawal agreement” means the agreement between the United Kingdom and the EU under Article 50(2) of the Treaty on European Union which sets out the arrangements for the United Kingdom’s withdrawal from the EU (as that agreement is modified from time to time in accordance with any provision of it).’

This new clause will ensure that all EU citizens have settled status (whether they’ve applied or not) and to require the Government to make available physical proof of settled status.

Amendment 34, in clause 4, page 2, line 34, leave out “, or in connection with,”

This amendment would narrow the scope of the powers provided to the Secretary of State in Clause 4, as recommended by the House of Lords Delegated Powers and Regulatory Reform Committee in connection with the equivalent Bill introduced in the last session of Parliament.

Amendment 36, page 3, line 8, at end insert—

‘(5A) Regulations under subsection (1) must provide that EEA and Swiss nationals, and adult dependants of EEA and Swiss nationals, who are applying for asylum in the United Kingdom, may apply to the Secretary of State for permission to take up employment if a decision at first instance has not been taken on the applicant’s asylum application within 3 months of the date on which it was recorded.’

This amendment would require the Secretary of State to make regulations enabling asylum seekers to work once they have been waiting for a decision on their claim for 3 months or more.

Amendment 32, page 3, line 28, at end insert—

‘(11) Subject to subsection (13), regulations made under subsection (1) must make provision for ensuring that all qualifying persons have within the United Kingdom the rights set out in Title II of Part 2 of the Withdrawal Agreement, the EEA EFTA separation agreement and the Swiss citizens’ rights agreement and implementing the following provisions—

(a) Article 18(4) of the Withdrawal Agreement (Issuance of residence documents);

(b) Article 17(4) of the EEA EFTA separation agreement (Issuance of residence documents); and

(c) Article 16(4) of the Swiss citizens’ rights agreement (Issuance of residence documents).

(12) In this section, “qualifying persons” means—

(a) those persons falling within the scope of the agreements referred to; and

(b) those eligible under the residence scheme immigration rules, as defined by section 17(1) of the European Union (Withdrawal Agreement) Act 2020.

(13) Notwithstanding subsection (11), regulations must confer a right of permanent, rather than temporary, residence on all qualifying persons residing in the UK prior to such date as the Secretary of State deems appropriate, being no earlier than 23rd June 2016.’

This amendment would mean that EEA and Swiss citizens residing in the UK would automatically have rights under Article 18(4) of the Withdrawal Agreement (and equivalent provisions in the EEA EFTA and Swiss citizens rights agreements) rather than having to apply for them, and ensure that for the overwhelming majority, that status is permanent.

Amendment 33, page 3, line 28, at end insert—

‘(11) Regulations made under subsection (1) must make provision for admission of EEA nationals as spouses, partners and children of UK citizens and settled persons.

(12) Regulations made under subsection (1) may require that the EEA nationals entering as spouses, partners and children of UK citizens and settled persons can be “maintained and accommodated without recourse to public funds” but in deciding whether that test is met, account must be taken of the prospective earnings of the EEA nationals seeking entry, as well as an third party support that may be available.

(13) Regulations made under subsection (1) must not include any test of financial circumstances beyond that set out in subsection (12).’

This amendment would ensure that UK nationals and settled persons can be joined in future by EU spouses and partners and children without application of the financial thresholds and criteria that apply to non-EEA spouses, partners and children.

Amendment 38, page 3, line 28, at end insert—

‘(11) Regulations made under subsection (1) must make provision enabling UK citizens falling within the personal scope of the Withdrawal Agreement, the EEA EFTA separation agreement or the Swiss citizens’ rights agreement to return to the UK accompanied by, or to be joined in the UK by, close family members.

(12) Regulations under subsection (1) may not impose any conditions on the entry or residence of close family members which could not have been imposed under EU law relating to free movement, as at the date of this Act coming into force.

(13) References in subsection (11) to the Withdrawal Agreement, the EEA EFTA separation agreement and the Swiss citizens’ rights agreement have the same meaning as in the European Union (Withdrawal Agreement) Act 2020.

(14) For the purposes of subsection (11), “close family members” means

(a) children (including adopted children); and

(b) other close family members where that relationship subsisted on or before 31st January 2020 and has continued to subsist.’

This amendment ensures that UK citizens who have been living abroad in the EEA and formed families before the UK left the EU, can return to the UK with those families under the rules that were in force before the UK left the EU.

Government amendments 1 to 4.

Amendment 35, in clause 7, page 5, line 13, at end insert—

‘(1A) Section 1 and Schedule 1 of this Act do not extend to Scotland.’

Amendment 39, page 5, line 40, at end insert—

‘(4A) Section 4 and section 7(5) expire on the day after the day specified as the deadline under section 7(1)(a) of the European Union (Withdrawal Agreement) Act 2020.’

Government amendments 5 to 31.

There is a great deal of interest in this debate. I propose to start with a limit of six minutes on Back-Bench speeches. I know that those on the Front Benches are aware of the pressure on time.

[Brendan O’Hara]

New clause 1 stands in my name and in the names of the hon. Members listed on the Order Paper. It seeks an independent evaluation of the impact of the effect of this Bill specifically on the health and social care sector. The reason behind it is that the faith that this Government clearly have in their new points-based immigration scheme simply is not shared by tens of thousands of those working in the health and social care sector and millions of their service users.

As of this afternoon, no fewer than 50 organisations have given their backing to this new clause. Those organisations come from every part of the United Kingdom. They include: the Bevan Foundation; the Church of Scotland; Unison; the MS Society; the Scottish Council for Voluntary Organisations; the Centre for Independent Living in Northern Ireland; Disability Wales; the National Carers Organisation; Macmillan Cancer Support; the Royal College of Physicians of Edinburgh; social workers in Scotland, Wales and Northern Ireland; the Voluntary Organisations’ Network North-East; and the Alliance for Camphill to name just a few.

By supporting new clause 1, all we are asking is that the Secretary of State for Health and Social Care, having consulted the relevant Ministers in Edinburgh, Cardiff and Belfast, as well as service providers and those requiring health and social care services, appoints an independent evaluator to assess the impact that this Bill will have on the sector and for Parliament then to debate and vote on that assessment. By accepting new clause 1, the Government would be saying to the sector, “We hear what you are saying. We recognise your fears and concerns, but we are confident that this new proposal will not adversely affect those caring for the weakest and most vulnerable in our society.” The Government would then be saying that they are happy to have that independent evaluation of these changes once it has been implemented.

The reason that this new clause has received such widespread support in the sector is that they, as the people who work on the frontline, simply cannot see how this Bill will help to deliver a better service to the millions of people throughout the UK who rely on it every day of their lives. One can understand their concerns, given that the sector is already struggling to recruit and retain the workforce that it needs right now to look after an ageing population, and a population with increasingly complex care needs.

At the end of September 2019, NHS England reported 120,000 unfilled posts. That is an increase of 22,000 on the previous year and it is a pattern that is being repeated across the United Kingdom. It is a bad situation, and it is one that is getting worse. There is genuine concern in the sector that the Government do not know what to do about it, and it is a concern that is only heightened by what is contained in the Bill.

In and of itself, filling those existing vacancies will be a major long-term challenge, but it becomes even more so if the Government are genuine about fulfilling the Prime Minister’s pledge to give every older person the dignity and the security that they deserve. To do that, they would not only need to fill the 120,000 vacancies that exist now, but would have to vastly increase the number of people recruited into the sector over a long and sustained period of time. The Nuffield Trust has said that providing just one hour of care to an elderly person with high needs who currently does not receive help would require 50,000 additional home care workers, rising to 90,000 if two hours’ care were to be provided. We must add to that the fact that one in four of the current health and social care workforce is aged 55 or over and therefore due to retire at some point in the next decade, resulting in a further 320,000 vacancies. I can understand why people are very worried. I cannot see how this Bill facilitates finding that army of workers, but, more importantly, no one I have spoken to in the health and social care sector sees how it can. In fact, there is a commonly held belief that the Bill will make recruitment of staff far more difficult and the delivery of what the UK Government claim they want well-nigh impossible.

I have said it before and I make no apology for repeating it: I believe that freedom of movement has been extremely good for this country and I bitterly regret seeing it go. It has been economically, socially and culturally beneficial for the UK. But if the Government are determined to abandon it, then the least they can do is to make sure that the weakest, poorest and most vulnerable are not disproportionately affected by it. I do not believe they have done that. I do not believe for a minute that they have considered the impact that this Bill will have on the health and social care sector—but I am prepared to be proven wrong. By accepting new clause 1, the Government will give the health and social care sector the confidence that this Government do know what they are doing, that they have carefully considered what the ending of freedom of movement will mean, and that they have a plan in place to protect the sector—and, more importantly, to protect those who rely on it.

Surely if the Government are really as confident about the efficacy of this new immigration Bill and the points-based system as they claim, they have nothing to fear from a comprehensive, independent evaluation that is there purely to assess the impact on the sector across the four nations of the UK. Indeed, it would be the prudent and responsible thing for the Government to do in order to ensure that any changes to the immigration system do not, however inadvertently, adversely affect the care needs of our most vulnerable.

This independent evaluation would not only ensure that no harm has been done to service users, but give any future Government a head start when planning and making decisions in the sector, particularly around recruitment of staff and investment. Surely the Minister can accept that such a far-reaching change as this should not happen on a wing and a prayer without a proper bespoke impact assessment on the sector—which there has not been—or at least an appropriate mechanism by which this House and Parliaments across the UK are able to accurately measure the effectiveness or otherwise of such a radical change.

By accepting new clause 1, the Government would ensure that these issues were being tackled from a foundation of accurate and independent research, allowing national Governments, local authorities, health and social care sectors, third-sector organisations and other key agencies to make strategic planning decisions while being fully informed by robust and independent evidence, thus securing the long-term future of the sector.

As probably never before, the people across the nations of the United Kingdom have come to appreciate the outstanding contribution made by those who work in our health and social care services. I doubt there is a family anywhere in the UK who has not benefited from their help in the past few months. But along with our sincere thanks and gratitude, we owe them an assurance that we will do everything we can to support them and the sector, and that must include providing them with the assurance that no decision taken in this place will undermine or adversely affect them. I hope the Minister will see that the Government have nothing to lose, but rather lots to gain, from agreeing to such an independent evaluation of the impact of this Bill on the health and social care sector, and I implore him to accept new clause 1.

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

Baroness Winterton of Doncaster Excerpts

Consideration of Lords amendments & Ping Pong & Ping Pong: House of Commons
Monday 19th October 2020 Commons Chamber

Consideration of Lords amendments

[Madam Deputy Speaker (Dame Rosie Winterton)]

I must draw the House’s attention to the fact that financial privilege is engaged by Lords amendments 4 and 5. If any Lords amendment engaging financial privilege is agreed to, I will cause the customary entry waiving Commons financial privilege to be entered in the Journal.

After Clause 1

Impact of section 1 on the social care sector

[The Parliamentary Under-Secretary of State for the Home Department (Kevin Foster)]

I beg to move, That this House disagrees with Lords amendment 1.

[Madam Deputy Speaker]

With this it will be convenient to discuss the following:

Lords amendment 2, and Government motion to disagree.

Lords amendment 3, and amendment (a) thereto, and Government motion to disagree with Lords amendment 3.

Lords amendment 4, and Government motion to disagree.

Lords amendment 5, and Government motion to disagree.

Lords amendment 6, and Government motion to disagree.

Lords amendment 7, and Government motion to disagree.

Lords amendment 8, and Government motion to disagree.

Lords amendment 9, and Government motion to disagree.

Lords amendment 10, and Government motion to disagree.

Lords amendment 11.

I am sure colleagues will see that a large number of Members wish to contribute to this debate. We have had two quite lengthy statements, so there is pressure on time. That means we will be imposing an initial six-minute limit on speeches from Back Benchers. I hope that Front Benchers will keep their remarks as brief as possible in the circumstances to allow others to contribute.

[Kevin Foster]

This Bill delivers on a key manifesto commitment to end the EU’s rules on free movement, and to deliver our fairer and firmer points-based immigration system. I am pleased the Bill has passed its Third Reading in the other place, led by my colleague Baroness Williams of Trafford. For such a short Bill, there has been substantial debate on a wide range of immigration issues. There are issues on which Members disagree with the Government, but we must now enact this Bill and deliver on our promise to the British people. I will speak to each amendment in turn.

Lords amendment 1 requires publication of an independent report on the impact of ending free movement on the social care sector. Although it is well intentioned, the amendment is unnecessary because we already have independent reporting in this area through Skills for Care and the Migration Advisory Committee, which is now free to work to its own commissions in addition to those given to it by the Government.

The Department of Health and Social Care funds Skills for Care to deliver a wide range of activities to support the Government’s priorities for the social care sector. This includes programmes to support employers and the workforce with skills development, promote and support recruitment into the sector, and support leadership development. The Department of Health and Social Care uses the data produced by Skills for Care and the trends identified to inform its policy development to support the adult social care sector to recruit, train and develop its vital workforce.