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

Stuart C McDonald Excerpts

2nd reading & 2nd reading: House of Commons & Money resolution & Money resolution: House of Commons & Programme motion & Programme motion: House of Commons & Ways and Means resolution & Ways and Means resolution: House of Commons
Monday 18th May 2020 Commons Chamber

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

Thank you, Madam Deputy Speaker. I am afraid to say that this is a dreadful Bill that will destroy opportunities for future generations and will split even more families apart. It will result in many thousands of EU nationals losing their rights in this country overnight; it will extend the reach of the hostile environment still further; it will drown thousands of businesses and key industries in red tape and massive fees; and it will deprive our public services of talented and desperately needed workers. It will push different nations and regions of the United Kingdom towards depopulation and drive a wedge between us and our European neighbours. In short, it brings to an end the one part of the UK migration system that works well—the free movement of people. Instead, it expands the reach of the UK’s domestic rules—a complicated mess of burning injustice and bureaucracy—and that is why the SNP, without any hesitation, will be voting against this awful Bill. But this awful Bill was made even worse by its appalling timing. Pushing ahead with it in the midst of a public health and economic crisis, and without paying heed to the recent Windrush review, is spectacularly misjudged and shows that the Home Office remains totally out of touch with reality, and completely out of touch with public opinion.

I turn first to the coronavirus pandemic and I join others in paying tribute to those on the frontline. I pay particular tribute to the migrant workers who are there, including too many who have lost their lives—consultants from Sudan, Nigeria, Sri Lanka, Egypt, Uganda and Pakistan, a hospital porter from the Philippines, doctors from Germany and Iraq, nurses from Zimbabwe, Trinidad and South Africa, support workers from India and Ghana, and many, many more. Each and every one deserves our tributes and our gratitude, but the more fitting tribute would be a coherent and robust response to the crisis—one that genuinely seeks to ensure that we are all in this together and doing whatever it takes, but that is not what the Bill provides.

We should have had a Bill that makes it easier, instead of harder, to recruit the NHS, social care and other staff we need, and not one that uses an ill-considered financial threshold as a poor proxy for skill, talent or contribution. It is right that the Home Office has ditched its earlier rhetoric about cheap, low-skilled labour, but it is now time to drop the accompanying policies, too. We should have had a Bill setting out a comprehensive and generous system of visa extensions for those frontline workers and their families, not the piecemeal, back-of-the-envelope scheme that the Home Office has so far cobbled together.

We need a Bill that scraps the minimum income requirements for family visas and suspends other financial thresholds, acknowledging that migrant families and workers have had their incomes slashed, just like too many others. More than 100,000 NHS workers and a huge percentage of care workers are prevented by Home Office financial requirements from being able to sponsor their husbands, wives and children to join them here in the UK. Is it not quite outrageous for the Home Office to say, “Thank you for your hard work, but no thanks to bringing your family”? There is absolutely nothing fair about that.

We need a Bill that uprates the pitiful sums of money that we are providing to asylum seekers in this time of crisis and which ensures that, whatever stage of their asylum journey they are at, they can be properly protected. We need a Bill that ensures that all migrants have at least some form of temporary status and which ends the no recourse to public funds rules that deprive people of the support and accommodation they need to get through this crisis. It is impossible for someone to self-isolate if they do not have a roof over their head or food to eat.

We need a Bill that automatically protects all who are at risk of accidental overstaying until coronavirus is over, that gets people out of immigration detention, and that ends data sharing with the Home Office so that the NHS and other vital services are not places that people in need are afraid to attend. We need a Bill that recognises the absurdity of the NHS surcharge and scraps it for good. We need a Bill that postpones any new immigration system until this pandemic is over and we know the reality of the huge economic challenges ahead.

Employers are justifiably aghast at the fact that the Home Office is attempting to foist a whole new bureaucracy on them now, in the middle of a public health and economic crisis. The Government took four years to finalise their immigration proposals, yet they are giving employers little more than four months to adapt—four of the most difficult months imaginable. The Bill undermines, rather than helps, our response to the coronavirus.

However, it is not just the public health crisis that the Home Office has totally ignored in the Bill—staggeringly, it pays no heed to Windrush either. The Windrush lessons learned review is an incredible indictment of the Department. It talks of Ministers failing to “sufficiently question unintended consequences.” It refers to

“an institutional ignorance and thoughtlessness towards the issue of race”

that reveals a Department that does not listen to contrary opinions or learn lessons, and where the political culture and pressure to be tough has caused harsh treatment, poor decisions and an absence of empathy for individuals. The Windrush case studies presented by Wendy Williams are enough to make people shake with anger, yet the Bill has not a single trace of recognition of Windrush in it and there are alarming signs that the Department has failed to learn lessons. Its crass and insensitive defence of the discriminatory right-to-rent policy almost makes me wonder whether the review has actually been read. Meanwhile, many of the same voices that warned about Windrush are warning about the fate of tens or possibly hundreds of thousands of EU citizens—old people, young people, looked-after children, care leavers and others—who may not appreciate the need to apply for settled status.

If they truly have learned the lessons of Windrush, the Government should protect EEA nationals properly. They should provide them with automatic rights, not rights contingent on their applying by a certain date; they should provide all with fully settled status and abandon the precarious pre-settled status; they should provide EEA citizens with a physical document as proof of their rights, and they must scrap the right to rent and other discriminatory hostile environment policies. Just as before, the Government seem to be ignoring the warnings; instead, the Bill seeks to give Ministers a blank cheque on future immigration policies. The last thing we should do is give the Home Office any more powers until the lessons of Windrush are properly learned.

There are so many other areas of immigration, asylum and nationality laws that need fixing. There is nothing in the Bill to address the injustices of nationality law, such as the disgraceful fees charged to children who simply want to register their British citizenship, to which they are entitled. There is nothing to fix our broken asylum system —the poverty support rates, the chaotic accommodation contracts, the shambolic move-on period, the ban on work, the restricted family reunion rights, and the loss of Dublin III participation. There is nothing here to address our addiction to immigration detention and the shame of being the only country in Europe without a time limit on detention. There is nothing to address the decimation of appeal rights and legal aid, which has contributed to many injustices, including Windrush.

Time and again, the Home Office has shown that it is so obsessed with numbers that it has totally lost sight of individual workers, students and family members, and the contributions that they make. More and more people will be asking, “Why did we leave immigration policy to the Home Office at all?”

Of course, on the question of who should make migration policy, with every single day of Home Office incompetence and injustice, the case for migration policy for Scotland being made in Scotland grows stronger. We have been reasonable, pragmatic and thorough in building the case, publishing papers and pointing to international best practice, but the Government simply refuse to engage in a grown-up discussion about migration policy being tailored for Scotland.

The risk of population decline and a shrinking labour force and tax base are real and grave issues for Scotland. The future system that this Government have designed is nothing short of a disaster for health and social care, tourism and hospitality, food and drink, agriculture, our universities, and many other key sectors of the Scottish economy. I recognise that it is not just Scotland that the Home Office is throwing under the bus, but other nations and regions of the UK too.

Instead of issuing soundbites and slogans about a system working for all, the Home Office must engage seriously. It must recognise that any system that has the express aim of reducing migration does not just fail to work for Scotland but actively works against Scotland’s interests. This is a rotten Bill, introduced with rotten timing. It is beyond repair and it does not deserve a Second Reading.

[Madam Deputy Speaker (Dame Eleanor Laing)]

I now have to introduce a formal time limit of five minutes on Back-Bench speeches. I should remind hon. Members who are speaking from home to have some way of ensuring that they do not exceed five minutes in case they cannot see the time on their computer or device while they are speaking, because I will have to enforce the five-minute limit very strictly.

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

Stuart C McDonald Excerpts

Committee stage & Committee Debate: 1st sitting: House of Commons
Tuesday 9th June 2020 Public Bill Committees

[Mr Robert Goodwill (Scarborough and Whitby) (Con)]

Q When the Bill was being formulated and opinion was being sought, the UK jobs market was entirely different from the one we shall see from the summer onwards, with many skills in very short supply—particularly for things like engineering, or even for people working in care homes or picking fruit. Do you not think that we shall see a situation in which a lot more British workers come into the jobs market, and that some of the concerns expressed in the past about the bureaucratic hurdles that might need to be coped with will actually not be such a great problem, because we will have a lot of very well-qualified and well-skilled British people? Is it right that the costs that we have just heard of from the Federation of Small Businesses will be a real incentive for companies to employ British people who are now, sadly, in many cases being thrown back on to the jobs market, in a situation in which we do not have, in effect, full employment? I think the FSB should be the first to answer that.

Martin McTague: I can see that there will be more incentive to look for indigenous employees, but the reality is that a lot of the shake-out, or the potential shake-out, that we are hearing is likely to happen will be among the least-skilled people. Companies are going to enormous lengths to try to hang on to the rare skills that they have. If they have managed to recruit somebody from, say, the European Union, they are going to enormous lengths to try to get them to apply for settled status and to reassure them about the covid situation. I do not think that a new influx of unemployed people, many of whom will have poor skills, will solve a lot of the problems for these companies.

Richard Burge: From a London point of view, I think the jury is out, literally. I do not think we really know what to expect as we come out of covid-19. The critical thing for London, and probably for all metropolitan areas, is the mobility of people, and the willingness of people to be physically mobile to go and find new work, possibly earning less than they were earning before. However, it is also about emotional mobility, too. Are people emotionally prepared to go and do new work, taking completely new tangents in their lives and probably earning less? That will be a real challenge. I think there will be greater opportunities, but not necessarily in a career path that people might have been expecting.

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

Q May I go first to the London Chamber of Commerce and then to the FSB? You have both spoken eloquently about the new challenges and red tape that the system will impose upon businesses. Looking at the other side of the coin, is there also not an extent to which this process puts some red tape and expense on potential employees from the European Union? It risks making coming to the UK to work less attractive. For example, I am from Germany and I have a job offer in London or I have a job offer in Dublin. Going to Dublin does not involve any charge or bureaucracy; going to London involves a visa, a health surcharge, and so on and so forth. Is there a danger that we are going to make this country much less attractive for skilled workers to come to?

Richard Burge: I think it is inevitable that it is going to be more difficult for people from the European Union; that is the consequence of leaving the European Union and not having an immigration policy for people from there. It is no longer an internal market; it is now a normal external market.

I think what we need to do is to make the red tape manageable. I think part of that is umbrella licensing. Part of that will be border clearance that is rapid and smooth, so it needs to be digitised and there needs to be e-clearance, and that also means that it cannot get cluttered up with tourism. We hope that everyone from the European Union will be able to come without a visa and not get caught in that process. Part of this process is the mechanism, and I think that one of the big challenges for the Home Office is to ensure that, while there may be more bureaucracy, it tries to make that process as smooth and as digitised as possible, and that is going to be a big ask before 1 January.

Martin McTague: I am really sorry; I can barely hear the conversation. Is there anybody closer to the microphone who could just repeat the essence of that question for me?

[Stuart C. McDonald]

Q It was a question about whether or not there is a danger that introducing this system for EU nationals will make the United Kingdom much less attractive as a place for them to come and work, if they have fees and visas to apply for, whereas the equivalent job offer in Dublin, for example, would involve none of that.

Martin McTague: I got the essence of your question. Most small businesses treated EU nationals just as part of the pool of labour; they would not even question where they originated, and it was just a very simple recruitment process. I think that the additional costs will act as a disincentive, but more importantly it is quite hard to persuade a lot of EU employees to stay in the country. They are leaving, and they are leaving with the kind of skills that are in really short supply.

[Stuart C. McDonald]

Q My other question relates to the proposals that we were debating this time last year, when the same Bill was going through Parliament, and there was a proposal for a 12-month visa for workers at lower pay levels. That was fairly controversial at the time, but now it has been scrapped altogether, rather than being improved, which some of us would have liked to see. Is that a change that you welcome, or would you want the Government to think again on that? Again, I will go to the London Chamber first.

Richard Burge: If I may start with that, certainly from a London Chamber point of view, and I think from the point of view of all my colleagues around the country, it was hugely disappointing to see that disappear completely from the Bill this time. It was a very sensible scheme. I think it demonstrated flexibility and a willingness to try to respond to helping people get through what will be a permanent change in the market. It is very sad to see it go. We would like to see the route for lower-paid workers—lower-skilled workers—being reintroduced in the same way as it was under the previous Prime Minister’s Government.

Martin McTague: I think I picked that up. We were disappointed to see the disappearance of the 12-month scheme; we thought that was addressing an important part of the labour market, and it is regrettable that it disappeared. Hopefully something can be done to implement something similar.

[Mr Richard Holden (North West Durham) (Con)]

Q I have a question regarding the change for non-EU migrants where it looks like the thresholds for wages are going to be coming down. The question is particularly for the London Chamber of Commerce and Industry. What impact do you think that that might have on the ability to get migrants with the right skills into the labour market in London and across the rest of the UK?

Richard Burge: It is helpful, because it is creating bigger diversity in terms of availability and access to labour. I think most small businesses, though, or any business will be keen to employ UK-based labour if they can. That is simpler and easier. In the end you do need to have access to global markets. We have to remember that we are a globally trading nation and, in the 21st century, trading tends to be in the skills of individuals and their brainpower and abilities. It is mostly about people rather than things, although we tend to focus on trade as being about things rather than people. The more we can do to keep our borders—within the Government’s requirements in terms of immigration for other purposes, social purposes—as open to people for work as they are for goods and services, the better.

--- Later in debate ---

[Dame Diana Johnson]

Q Do you feel that by 1 January there will be a regime in place that will be sufficiently efficient to ensure that members of the Federation of Small Businesses will be able to have confidence that the scheme is going to work well for them and the requirements of their business? I am mindful of the very difficult situation that we are in with covid-19, as has been said already, and the bandwidth that is available in government at the moment.

Martin McTague: The short answer is that the time available is far too little for most small businesses to adjust to what is a completely alien system. It is relatively easy for the larger businesses with HR departments to make this adjustment. They may already be recruiting tier 2 employees, but for most small businesses it will be extremely difficult and costly. I think that all it will mean is that most of them will decide to scale back their operations and make sure that they adapt to a new world that has fewer skilled people.

Richard Burge: My view is that most small businesses will be able to get through this, if they know the rules soon enough, if there is a process by which they can use umbrella licensing, and providing that new systems are put in place by the Home Office. I think that is the critical thing. As I said, I have huge respect for the Home Office under the leadership of Matthew Rycroft and his team, but they are dealing with things such as covid-19 issues on immigration, refugees arriving over the channel, the situation in Hong Kong, and the immigration surcharge. They have a huge job list to do—and this is the only one in which they have a choice about the timing. I hope that the Home Secretary will be looking internally at the Home Office and its capability to deliver things that will then enable business to respond in a timely manner. I am concerned about the pressure being put on them.

[Stuart C. McDonald]

Q Since we have a little time left, to what extent does the shortage occupation list offer a partial solution to some of the challenges you face? We sometimes hear criticism that it is slightly unwieldy, slow and unresponsive. What is the experience of your members—from the London Chamber first?

Richard Burge: It is slow and unwieldy and should be faster. One way of improving that is to involve businesses much more directly in analysing what a shortage occupation should be. We can rely on businesses who are asked to join, say, an industry body, to work alongside the Migration Advisory Committee on that work. We can rely on them to be forthright but not to plead special interest. It needs to involve business much more directly and that, it is hoped, will enable it to be much more responsive to the marketplace. The marketplace is going to change very dramatically over the next 12, 18 or 24 months, and we do not really know how it is going to change, so we have to be light of foot.

[Stuart C. McDonald]

Q Mr McTague, what is the experience of your members with the shortage occupation list?

[The Chair]

We seem to have a technical problem. While we are trying to sort that out, are there any questions to Mr Burge?

[Stuart C. McDonald]

Q One final question, if I may, Mr Stringer. It is a broader question about the nature of this Bill, since, obviously, this morning we are going into the fine detail of a future immigration system. In fact, the Bill is pretty much silent on that and essentially hangs the powers to put that system in place on the Home Secretary. That would be the end of MPs’ involvement to all intents and purposes. Is that the appropriate way to go about making immigration policy?

Richard Burge: It is up to you in this House to decide how you use legislation to maintain scrutiny of Government. We would ask that, whatever means are chosen—through primary legislation or regulation—it is done in a transparent way and involves us. Instead of us in business being told what is happening, we should be involved in those discussions and make them as transparent as possible. As far as I can see, employment and immigration are not a national security issue; it could be discussed much more openly and transparently. We can resolve differences through public dialogue rather than through private discussion.

[The Chair]

May I just check that Mr McTague is there? Apparently, he is not. We will try to get him back.

--- Later in debate ---

[The Chair]

Do we have Mr McTague?

Martin McTague: Yes, I am here. Sorry, the line dropped.

[Stuart C. McDonald]

Q Thank you, Mr McTague. Sometimes the shortage occupation list is said to be an answer to some of the issues that you have flagged up this morning. At other times, we hear criticism that the shortage occupation list has been a slow and clunky process. What has been your members’ experience of the shortage occupation list?

Martin McTague: The principle of the shortage occupation list is a difficult one for us, because it is a fast-moving situation and the shortage occupations can change from week to week and from month to month. It is better for them to be in a general category, but it is rather bureaucratic and clunky. It is a situation that we are prepared to stomach rather than appreciate.

[Stuart C. McDonald]

Q How would you try to improve it?

Martin McTague: Sorry, I could not quite hear that.

[Stuart C. McDonald]

What improvements would you want to make to the procedure?

Martin McTague: I would like to see a much more active engagement with business representative organisations so that, if there are changes, they can be quickly implemented and we are not waiting for a long, drawn-out bureaucratic process to work its way through the system. It is about keeping as much flexibility in the system as possible.

[Stuart C. McDonald]

Q My final question to you, Mr McTague, is a broader question about the Bill. We have spoken a lot about the future immigration system that has been proposed by the Government, yet the Bill is pretty much silent on that. In fact, it is basically just handing a blank cheque to the Home Office to implement that. Do you think that is the best way to go about scrutinising and making immigration policy, or would you prefer to see the rules made in a different way?

Martin McTague: I am really sorry, I can barely hear you. It is echoing and distant. Could someone closer to the mic help me?

[The Chair]

Can you try one more time?

[Stuart C. McDonald]

Q I will try again, Mr McTague. It is a broad question about how we make immigration policy. This Bill essentially gives the Home Secretary the power to put in place a system with limited scrutiny and oversight from Parliament. Do you think that is the appropriate way to go about things or would you prefer to see immigration policy made in a different way?

Martin McTague: I think the fact that the Home Secretary is in a position to vary it and respond to changes in market conditions is better than if it was written on the face of the Bill and we had to go through some sort of legislative process to get changes made. In terms of flexibility, my vote is for the most flexible system we can adopt.

[Stuart C. McDonald]

Q Is there no way you can have flexibility but with parliamentary oversight?

Martin McTague: Sorry, can you say that again.

[Stuart C. McDonald]

Flexibility does not mean that you cannot have parliamentary oversight, does it?

Martin McTague: No, it is not that. I think the Home Secretary will be answerable to Parliament about the decisions that she or he has made. That would be a way in which Parliament could ensure there was proper scrutiny. There needs to be a system that can respond in real time to some of the really big changes in market conditions. They will be even more marked in the coming months.

[Stuart C. McDonald]

Q Yet, ironically enough, you have spent most of your evidence saying that the Home Secretary was not responding to what business was saying at all.

Martin McTague: I’m sorry, I am struggling to hear you.

[Stuart C. McDonald]

I will stop digging there.

Martin McTague: I apologise.

--- Later in debate ---

[Holly Lynch (Halifax) (Lab)]

Q Bearing in mind what you have just said, what are the things that you would really like changed about the Bill? Alternatively, what would the Government need to do to support you to manage the impact that it will have on your businesses?

Matthew Fell: There are a few things that we would like to see in the proposed new immigration system. We believe that a temporary route for people to come and work in this country would be a helpful addition to the system as it is currently set up.

Secondly, I would say to accelerate efforts to streamline the proposed approach. The vast majority of businesses have never previously had to engage with the visa system; something like only 30,000 businesses in the country have grappled with it so far, because we have lived and worked with free movement of people for so long. It will be a big change, so I would say to accelerate the changes to streamline and improve the system, reduce red tape and so on.

The final piece, just to reiterate, is to accelerate efforts to get clarity and detail out there and known to businesses as soon as possible, so they can begin to familiarise themselves, prepare and get ready.

[Stuart C. McDonald]

Q Last year, when you gave evidence to the Bill Committee, you described tier 2 as a

“restrictive, complex and burdensome system.”––[Official Report, Immigration and Social Security Co-Ordination (EU Withdrawal) Public Bill Committee, 12 February 2019; c. 67, Q178.]

Could you say a little more about what you mean by that?

Matthew Fell: There are a couple of areas. It comes down to some of the red tape issues, and there are a few examples. The initial sponsor licence, businesses tell us, is very document-heavy, in their words—for example, on the HR practices side, having to evidence, track and monitor things that small businesses feel are perfectly obvious. If they employ 10 or up to 20 people and one person is missing, that is self-evident; they know if a person is not there.

There is quite a lot in the reporting requirements that could be streamlined. Lots of people say to us, “We have to report it if a migrant’s pay has increased, and we don’t quite understand why. If they were already given the green light because they cleared the salary threshold, why would we need to report that that has increased?”

Thirdly, people feel that the volume of documentation required to be kept on file, including details such as notes from interviewing candidates, is quite onerous. Those are some of the examples of red tape burdens that we would welcome efforts to streamline.

[Stuart C. McDonald]

Q May I also ask about the costs that will be involved now? How much more expensive will it be for businesses who have never done this before to recruit workers from the EU?

Matthew Fell: There will be a significant uplift in cost, particularly for businesses that have never grappled with this before. There is an ongoing cost, but there is also a first-time familiarisation effort that will cost more, particularly for small businesses. Larger companies who deal with high volumes of people are likely to have in-house HR and legal expertise. That is much less likely to be the case for small and medium-sized businesses, who will need to pay for external advice to be able to navigate this new system.

[Stuart C. McDonald]

Q To turn the question around a little and look at it from the perspective of prospective employees as opposed to employers, if somebody has a job offer in London or Dublin, is there a danger that imposing the tier 2 system is going to make London much less attractive than Dublin, if they are faced by, for example, visa fees and visa applications and immigration health surcharges?

Matthew Fell: That is an issue. It is an issue that companies will look at, for example, if they were a multinational business and they were choosing the location of business, so it is true from a business perspective. From the employee perspective, it might be down to the speed with which they can get certainty—“Can I go and live there and know that it is okay?” Clearly, there are others who would speak more for the employee perspective, but that would be my perspective on the employee view.

[Kate Green]

Q How important is access to social protections such as health cover or protection of pension rights to the recruitment and retention of EEA nationals?

Matthew Fell: I think it is an important factor. It is quite hard to say exactly where the detail of that lands, particularly in the context of the EU-UK negotiations that are ongoing; we will need to see where they land. Social security measures and the issues that you have just described are really important for reciprocity—not just migrants coming to work in the UK, but UK workers overseas—and that reciprocity is particularly important for mobility of labour as well as for migrants coming to work in the UK.

--- Later in debate ---

[Angela Richardson]

In your first answer you said that 95% of workers in production are EU nationals. What percentage of that are UK workers?

Tim Thomas: Apologies—what I said was that 95% of our members employ an EU worker. Across the whole of the sector, we employ between 2.7 million and 2.9 million workers, of whom about 330,000 are EU workers.

[Stuart C. McDonald]

Q Given what you said, Mr Thomas, and everything that is going on, would it be helpful for the implementation of the new immigration system simply to be postponed?

Tim Thomas: I think that would simply lead to more uncertainty among manufacturers. We expect the UK Government to implement the new points-based system on the timeline that they guaranteed, and to provide businesses with the full suite of material—the statutory instruments and guidance—by the end of the summer at the latest so that we have a significant period to familiarise ourselves with it before January. If we delayed implementation, that would cause more uncertainty among businesses. Clearly, we need time to adjust and to see what the new system is. However, we naturally do not want a delay to the implementation date.

[Stuart C. McDonald]

And, quickly—

[The Chair]

Order. No, sorry. Robert Goodwill, very briefly.

--- Later in debate ---

[Mr Goodwill]

Q Is it more likely that EU workers will come and stay? If they are deterred from doing so, we might have more workers from outside the EU, who might not stay so long.

Brian Bell: I certainly have not seen any evidence of that. It is a difficult one, because there has been a different rule up until this point in time. I have not seen any evidence that suggests European Union workers are more or less likely to stay on a long-term basis than non-EU workers. The data are not very good on that kind of thing, but it would be an interesting thing to look at.

[Stuart C. McDonald]

Q Professor Bell, may I take you back to what the Minister asked you about regional variations? It is important to be precise about exactly what the MAC recommended. The Minister suggested that the report recommended against regional variations, but you were very careful to say that your report addressed regional variations and salary thresholds. The MAC was not looking at the broader issue of regional visas or devolution of immigration control.

Brian Bell: That is correct. Immigration is a reserved matter, so we were asked to report just on that.

[Stuart C. McDonald]

Q On the salary threshold?

Brian Bell: Yes, on the salary threshold.

[Stuart C. McDonald]

Q Is it fair to say that your report says the decision was finely balanced, that there were arguments on both sides and that the majority of people responding to the consultation supported the idea of regional variations in salary threshold?

Brian Bell: I agree it was certainly finely balanced, although there was an extensive discussion on the maths. It is fair to say that that was primarily driven by Northern Ireland. The differences in wages between Northern Ireland and the rest of the United Kingdom are more significant than in other devolved Administrations, and they had different issues because of the land border.

You are probably right that the majority of our respondents were in favour of it. That partly tells you that when you call for evidence, you get very interested parties on one side, and not many on the other. A classic example is that when we did our major report in 2018 on the impact of immigration from the European Union, we got some 450 responses, almost none of which were not in favour of freedom of movement. Almost all were kind of in favour, which did not properly reflect what the British people as a whole thought. That is the nature of a call for evidence.

[Stuart C. McDonald]

Q The report called for a pilot scheme about our remote areas. What was the reason for that, and are you troubled in any way that the scheme seems to have since disappeared?

Brian Bell: The reasoning was that we received reasonably strong evidence, not just from Scotland but from other areas, nations and regions of the United Kingdom, that there are rural communities that find it difficult to recruit in the way that employers can in more urban and suburban areas. Often those employers are key to that small community, so they are sometimes more important than your average employer in a big city. That was our thinking about that.

We suggested a small pilot—it is important to emphasise that we thought it should be a small pilot. Such a scheme has clear risks, two of which I suppose I should highlight. One is that you issue a visa to someone and say, “You have to stay in one small area, with one employer, and you cannot move, because it is a rural scheme.” We generally do not like the idea of saying to workers that they have to stay with one employer, because that gives the employer lots of power and does not give the worker much power. There is an uncomfortableness about that kind of scheme.

The second problem is our worry that it does not deal with why rural communities are losing population. As soon as you have this type of scheme, you might get an immigrant to go there, but as soon as they have freedom to move—for example, if they get permanent leave to remain and can go anywhere in the UK—if the reasons why people in those communities do not want to stay in the first place still exist, why would we not expect that migrant to move as well?

There are problems, but we recommend the scheme. As I understand it, the Government have not yet decided whether to have such a pilot or not. If I have to be honest, part of that is because an enormously complicated system is about to be introduced. You want to go in steps, so the Government are focused on the main work route at the moment.

[Stuart C. McDonald]

Q I appreciate that there are challenges, particularly around tying a person to an individual employer, but that is not dissimilar to what we do now with tier 2. There are procedures to transfer to another employer, if criteria are met. That is a something worth exploring. In relation to Northern Ireland, did the report go as far as saying that consideration should be given to regional variations in salary there?

Brian Bell: We did not go as far as that. We said that we thought the argument was most compelling in Northern Ireland, but in the end we did not think the differences were quite big enough to justify having the more complicated system.

[Stuart C. McDonald]

Q Is that simply because you could be an employer in Northern Ireland and just a few miles down the road somebody is able to access labour without reference to tier 2, experience, salary thresholds or whatever else might be in place?

Brian Bell: There is a clear difference because of the border. To be clear, the shortage occupation list that we are reporting on at the moment has the ability to have a Northern Ireland SOL that is separate from the UK-wide SOL. If there are representations made to us that there are particular recruitment problems in Northern Ireland in some occupations, that are not true for the UK as a whole, we have the ability to recommend to the Secretary of State that they be put on the Northern Ireland SOL but not on the UK-wide SOL, as is true of Scotland.

[Stuart C. McDonald]

I think—

[The Chair]

I call Kate Green.

--- Later in debate ---

[The Chair]

I cut off Stuart McDonald earlier, and I think he had another question. We have a little more time, so he may finish.

[Stuart C. McDonald]

Q Thank you, Mr Stringer. To go back to the shortage occupation list, I am sure that it will be very welcome that there will be a shortage occupation list for Northern Ireland. However, when I speak to businesses in Scotland, and also elsewhere, there is a criticism that people find it slow, not very responsive and rather clunky. You spoke a little about the work to try to make that a better process. Could you give us a broad understanding of when a job becomes a shortage occupation? A couple of vacancies in Cornwall or Caithness are clearly not enough. Where is the point at which it becomes in shortage?

Brian Bell: Obviously, there is a difference between there being a UK-wide shortage and a devolved Administration shortage. For the second, we only look within the country. Broadly, we are looking for a broad shortage across employers. That is the first thing. As you say, it would not be very compelling to us if one employer said, “We find it difficult to recruit,” because our first response might be, “Perhaps you are not a very good employer.” We want to see, broadly within that occupational sector, that there is a recruitment problem. We want to think that it is more than just an extremely short-term problem. To be honest, this work route will not be ideal if you just want to fill a very short-term vacancy, for the simple reason that you have to pay fees and go through the process of applying. It is more suitable for permanent, long-term positions. We want to see that the shortage is likely to last into the medium term.

The final criteria that we use, which in one sense is the most important, is that we want to be convinced that migration is the appropriate response. In answer to your earlier question, we were talking about how skills are an important aspect of all this. One thing that we say to employers is that, if they want to be put on the shortage occupation list, and if they want us to recommend that, they need to show us evidence that they are going out and trying to train up British workers. They need to show that they have a training programme themselves, or that they are working with further or higher education colleges to try to increase the supply of British workers.

Either that takes time, which we understand, and which is an argument for putting it on the shortage occupation list until that has successfully come to fruition, or quite frankly, if they can show that they have done that kind of thing and it just has not worked, we also think that that is quite strong evidence. That suggests that there are structural problems in that sector or industry, so we perhaps have to accept migration as a response to that, and that British workers either do not want to do those jobs or there are alternatives that they would prefer to do.

[Stuart C. McDonald]

What do you say to those who have criticised the system for being too slow and not responsive? What is changing?

Brian Bell: Historically, it has been, because, as I said, we only ever reviewed the SOL when we were asked to. It was, frankly, probably low down in the priorities, so, often, it was looked at every three or four years. We will recommend to the Government how we should review it going forward. I cannot tell you what that will be, because we have not decided, but I will say that most other countries that have an equivalent, such as Australia, Ireland and Canada, usually have a regular review process about once a year. I think there is a trade-off. If you do it too often, you do not actually get any new information; the employer just sends you the same thing they sent you last time—

[The Chair]

I am afraid that brings us to the end of the questions today.

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

Stuart C McDonald Excerpts

Committee stage & Committee Debate: 2nd sitting: House of Commons
Tuesday 9th June 2020 Public Bill Committees

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

Q May I continue, Professor Ryan, on deportation? This very same issue arose this time last year, in a previous Bill Committee. Is it right that, at that time, the Immigration Minister made a commitment to the higher threshold, even though it was not in the Bill? Do I recall that correctly?

Professor Bernard Ryan: That is correct. I believe it was in the Committee stage, in the light of the evidence, perhaps, that the Minister made that commitment. Those commitments are obviously welcome, from my perspective.

[Stuart C. McDonald]

Q That prompts the question: why not just put it on the face of the Bill?

Professor Bernard Ryan: It is obviously stronger if it is put in the Bill. If it is not, policy can always be changed. Going back to the wider clause, one strength of what has been done is that it gives clarity to Irish citizens on their position in the United Kingdom. That, in a sense, is the issue with deportation. What are the arrangements going to be? What are the standards going to be? Having things in legislation, rather than in policy, is obviously stronger, from the perspective of Irish citizens.

[Stuart C. McDonald]

Q May I ask a couple of questions about family rights? In your written evidence, you say that Irish citizens in the UK will be able to be joined by non-EEA family members, because they will be treated as settled persons, essentially. Is that right?

Professor Bernard Ryan: My main concern regards Irish citizens who are not yet resident in the United Kingdom. It is the case that Irish citizens are treated as settled once they commence residence. From that point, as things stand, they will clearly be able to sponsor, but what about the Irish citizens planning to come with their non-British or non-Irish family? They will need entry clearance. How will it work for them?

[Stuart C. McDonald]

Is that because the fact that they are not in the UK obviously means that they cannot be treated as settled persons? Okay. I will ask Mr Morgan a question, if he is able to hear.

[The Chair]

Are you receiving us loud and clear?

Jeremy Morgan: Yes. I heard very little of the other evidence, but I heard that question.

[Stuart C. McDonald]

Q Mr Morgan, I understand from your submission that there are issues with the Bill in relation to UK nationals who want to come back, with family members, to the UK from countries in the EEA. Could you explain what those issues are?

Jeremy Morgan: I would like to highlight a particular hardship that UK citizens living in the EEA will face after March 2022. The background is that, in the negotiations over the withdrawal agreement, citizens’ rights were a first priority for both sides, and reciprocity was the watchword. In other words, whatever we got, they got, and vice versa. That was a clear, underlying consideration in the negotiations.

However, the right of citizens to return with their families to their country of origin was deemed outside the scope of the negotiations, and the result is a serious inequality between UK citizens in the EU and EU citizens in the UK, in which, perhaps rather perversely, the discrimination is by the UK against its own citizens. We put forward an amendment in our briefing paper, which has been picked up as amendment 14. This is not the place to analyse the issue in great detail, but I would like to look at the comparison that we draw there between two groups in the case study—a UK citizen living in the EU and an EU citizen living in the UK.

It is a familiar story: a young UK citizen gets on their bike and goes to find work in the EU. They meet someone there, they marry and have a family, and they settle there. At the time when the UK citizen leaves, they have parents in the UK who are in middle to late middle age and are perfectly healthy. The reassurance was there, both for the UK citizen and their parents, that should either parent or both parents become infirm and need to be cared for by their child, there would be no problem about the UK citizen returning with family to look after them.

Years later, say in 2030, one parent might be by herself and need that care. After March 2022, the UK national will be able to return with their EU partner only if their partner can enter under the new points-based system—we have yet to see it, but that is likely to be quite difficult—or if they can meet the minimum income requirement, which is £18,600, as I am sure you all know. It has already been estimated that about 40% of the people living in the UK would be unable to meet that requirement, but matters are complicated for those returning from abroad by the UK rules on what income counts for such purposes. The income of the partner—let us say, in this case, the EU partner—will not count unless they are already in the UK and have been earning that income for six months. So it is a Kafkaesque situation: you cannot get in unless you have the income, but your income counts only if you have already got in.

In practice, the UK national has to earn the minimum income requirement on their own, while at the same time caring for their parent. It will simply be impossible for many people—probably most. In practical terms, the other option is to move the UK parent, who is now elderly and frail, to an unfamiliar country where, for language reasons, they will be unable to speak to the doctors or anyone else. It is well established in the literature that any move, for someone of that age, is difficult. Think how much worse it would be in such conditions; for most people, it is not a serious option.

In practice, it means that UK citizens have to choose between their parents and the family they have made in the EU—a heart-rending choice that nobody should have to make. It is not a choice that a comparable EU citizen of the UK has to face, because they have an absolute right to return to their EU country with a partner they met in the UK, and it is not a requirement that the UK citizen now living in the EU had faced when they moved, because at that time they had a right to do so. It is a case of moving the goalposts long after the event. It is a real worry for many thousands of people in that situation. Be they young or old, most people who have left the UK will have parents back there. It is a worry in the sense that people worry about it; it may not become a practical reality, because who knows what will happen in the future? But it is a real concern, which could be got rid of by passing amendment 14 and removing both the injustice and the discrimination.

--- Later in debate ---

[Mr Goodwill]

Q I have a question for British in Europe. You talked about inequalities. Is it not the case that there is currently an inequality whereby EU or EEA citizens living in the UK have better rights than British citizens in terms of bringing spouses into the country, because the £18,600 income rule does not apply? Indeed, if a British citizen can determine that they are resident in the EU under the so-called Surinder Singh case, they can apply to have that rule addressed. Would you say that by addressing that inequality, we are ensuring that British citizens would have the same rights as everyone else, rather than the current unusual situation in which it is easier for an EU citizen to bring a spouse into the UK?

Jeremy Morgan: I did not understand the beginning of the question. I think the question was: would this equalise the rights between EU citizens living in the UK and UK citizens living in the EU? The answer is yes.

[Stuart C. McDonald]

Q Professor Ryan, while we have the opportunity, I want to ask you further about the third group of issues you addressed in your briefing paper—the provisions of the Good Friday agreement. It seems from your paper that the issue is that, in order to assert certain rights—protection against deportation, for example, or perhaps access to some family rights—people would have to assert their British citizenship, which, reading between the lines, you say is not really consistent with the Belfast agreement. Your solution is to put some sort of equivalence in the Bill for all persons of Northern Ireland. Is that a fair summary?

Professor Bernard Ryan: Yes. Actually, I am borrowing that idea to some extent from Alison Harvey, from whom I believe you are hearing evidence later on. She has written a paper for the two human rights commissions in Ireland on the birthright provisions in the Belfast agreement, and her eventual solution is that people of Northern Ireland should be granted the right of abode—the status given to British citizens—which takes away their need to identify as British in order to get the equivalent outcomes. Both the things I raised—family sponsorship and deportation/exclusion—would be addressed by that route. I come at it from thinking about Irish citizens or people identifying as Irish citizens and how they should be protected, so I would say that an alternative route is to focus on that and somehow put in additional protections for the people of Northern Ireland to address the Irish citizens within them.

[The Chair]

Thank you very much. That concludes our session with this panel of our witnesses, who I thank for coming here today or speaking via audio link.

Examination of Witnesses

Jill Rutter and David Goodhart gave evidence.

--- Later in debate ---

[Holly Lynch]

Q Can I put the same question to Jill Rutter? What would need to change so that the MAC was really equipped to respond to these workforce issues?

Jill Rutter: I fully agree that skills policy and immigration policy need to be much more closely aligned. Whether the MAC is the best instrument to do it, given its current remit, I do not know. There are arguments for extending the MAC and bringing in other expertise. At the moment it is very labour market economist-focused—its remit has largely focused on labour market impacts. There are arguments for expanding the MAC.

I also think it is worth looking at the migration skills surcharge, which is a very blunt instrument. It applies to non-EU migrants; employers who bring in non-EU migrants have to pay a surcharge. The money just disappears into the Treasury, and I do not think it incentivises training at all, so that is something to look at as well.

[Stuart C. McDonald]

Q Can I ask a broad question? It will be a slightly controversial one in these surroundings. To what extent are changes in public attitudes to migration over the last 10 years related to politics and the media? Is it not quite striking that towards the middle of the last decade was when public concern about migration was at its highest, and that is probably when the political debate, if I can call it that, about migration was at its height? The tailing off in public concern also tallies with the fact that, since the referendum, migration has not been on the front page of every newspaper or at the forefront of political debate.

Jill Rutter: A whole load of factors influence public opinion. Our national media and political debates obviously have a hugely important impact, but so does what happens locally and your own personal contact with migrants. If you have friends who are migrants and refugees, you have another reference point to add to what is going on and what is being played out on the internet or on social media.

[Stuart C. McDonald]

Q Does that not illustrate exactly what I am saying about personal experience? Sometimes concern about migration is lowest in places where there are significant levels of migration. If you do not have that personal experience, you must be relying much more on the media, political debate and so on.

Jill Rutter: Absolutely, and that was very evident in the polling that we did: those with no personal contact with migrants and refugees as friends or work colleagues had more negative opinions. I think that that accounts for the difference in attitudes between some of our more diverse cities and our less diverse towns, but political discourse and media stories have an impact as well.

[Stuart C. McDonald]

Q Any thoughts on that, Mr Goodhart?

David Goodhart: I see what you are getting at. I think that there is some truth in the argument that when it is on the front pages of the newspapers every day, it generates a sort of generalised anxiety that is perhaps not justified. But actually if you look at the historic trend from the late ’90s, when immigration started really taking off again, it is remarkable how anxiety about immigration and actual immigration levels really do track each other very closely, although that may have diverged a bit recently.

I also think it is not really fair how it is often said in passing how xenophobic our debate about immigration has been. I do not think that our debate about immigration has been remotely xenophobic.

[Stuart C. McDonald]

Q Really? At any time?

David Goodhart: Yes, really. Almost every time somebody talks about immigration and restricting it, they also say in parentheses how marvellous immigration is.

[Stuart C. McDonald]

Q But we are talking about a decade of “Go home” vans, the Windrush scandal—

David Goodhart: “Go home” vans lasted about five seconds—

[Stuart C. McDonald]

Q Posters during the Brexit referendum, with refugees—

David Goodhart—and that was against illegal immigration. You are not in favour of illegal immigration, are you? You are in favour of illegal immigrants going home.

[Stuart C. McDonald]

Q It was about the free movement of people. The poster that was put up had absolutely no relation to the EU referendum at all, and it was xenophobic.

David Goodhart: No, I don’t think that was xenophobic.

[Stuart C. McDonald]

Q But what was the point of it? What was the point of that poster, if it was not xenophobic? It had nothing to do with the free movement of people. What was the point of putting up that picture?

David Goodhart: It was encouraging illegal immigrants to contact the authorities to get a grant in order to go home.

[Stuart C. McDonald]

Q You are talking about the “Go home” vans now. I was talking about the posters that were put up by certain political parties during the referendum.

David Goodhart: Oh, the Nigel Farage—okay, there is a sort of xenophobic tinge to some of it, but this was a very minority part even of the leave campaign. I think there is an interesting point about opinion in Scotland, which is somewhat different, partly because there has been a somewhat different rhetoric in Scotland.

Actually, I think there is a very good case for having a different visa regime in Scotland once this Bill becomes law. I know that the Government rather set their face against that at the moment, but I think it would remove a source of antagonism between the Scottish Government and the UK Government, and it ought to be perfectly easy to manage, so long as we have a proper internal status checking system—something that is sometimes called the hostile environment. It is not the hostile environment; it is a system of checking people’s status. A separate system for Scotland works only if you have a reliable status checking system—by employers particularly, but also by landlords and others. There is a really good case for it but, as I say, it only works if you have a proper status checking system.

[Stuart C. McDonald]

Q I agree with you as regards employers, but we will come to that debate a little later.

Jill Rutter, may we come back to you? Is there not also an issue about the fact that, compared with other countries—Canada being a particular example—very little effort has ever been made by UK Governments on an integration strategy or on investing in smoothing over some of the challenges that arise because of migration in particular pockets of the country? We had a small fund—I cannot even remember the name—that Gordon Brown introduced, which was scrapped by Theresa May, only for her to introduce a small pocket fund called the controlling migration fund. At best, is that half-hearted compared with what other countries have attempted?

Jill Rutter: Absolutely. Our getting integration right is core to building public confidence in the immigration system. In England, we have an integrated communities Green Paper. Sajid Javid, as a former Ministry of Housing, Communities and Local Government Minister, Home Secretary and Chancellor, is a champion of that but, since his departure, unfortunately, we have not had high-level champions in Government. For a period, we had no integration Minister at all.

Much of integration, too, involves devolved powers—education and so on—and I think more needs to be done by the devolved Administrations in Belfast, Cardiff and Edinburgh. Scotland has a refugee integration strategy, but it is very much about refugees, whereas integration properly as a two-way relationship is an “everybody” issue. Certainly, more action is needed there, in all the Administrations.

As regards the Bill, making immigration and integration policy coherent is something that you should consider—making the acquisition of citizenship easier, allowing asylum seekers who have been here for a long time to integrate and work, and incentivising integration through the new points-based system. For example, more points could be awarded to people who speak English, whatever their job will be in the UK—so using the points-based system to incentivise integration.

[Stuart C. McDonald]

Q Mr Goodhart, should we all be doing more to have a strategy for integration, for citizenship?

David Goodhart: Yes. That is something I have been interested in for a very long time. We should almost have an immigration and integration Department. The problem is, integration is very easy to talk about but, in a liberal society, it is very difficult to tell people where to live or to send their children to school. There are parts of the country where integration is a real problem; there are other parts of the country where it is not at all. You mentioned Canada, but it is a slightly special case; compared with comparable European countries, we do not do too badly.

The thing that I worry about at the moment is schools. Integration in schools is going backwards in most parts of England. In other words, schools are becoming less well integrated. In any given town, you are more likely to have a school that is overwhelmingly one ethnic minority, or ethnic minorities in general, and then another, almost entirely white school. That problem is getting worse, not better. That is something that is in our power to do something about.

We have ways of counting this, of measuring it. We have where people live and where they go to school, and we can measure that by different ethnic group. We can tell which areas are getting better, and which worse. It would be a really helpful thing, not necessarily every year, but every two or three years, to publish some kind of list of what has been happening in different places—some kind of integration/segregation list of local authorities. That would be a huge incentive for all the most segregated local authorities not to be right at the bottom—not to be the most segregated local authority in the country. There are things you can do, and I think we should focus attention on schools, because it is possible to play with boundaries and nudge people into a better school mix.

[Mr Goodwill]

Q Thank you very much, everyone. This session so far has been useful in exploring what factors influence public opinion on immigration, which of course becomes a very political issue in a referendum or a general election; in fact, that was Stuart’s line of questioning. How much does the media affect that, and how much is an altruistic wish to do the best thing for the UK economy?

Jill, I note that you are a co-author of a document published in September 2018, “The National Conversation on Immigration”. I wonder how much that document reflected some of the feeling in the north of England and parts of the country that maybe do not see immigration as allowing somebody to make your coffee in the morning, clean your house or work as your au pair; those that, as we heard this morning, see it more as a limitless supply of Romanians and Bulgarians who can fill your job if you want a pay rise. Do we have a north-south divide on attitudes to immigration, and do you think that was a factor in the fall of red wall seats at the last general election?

Jill Rutter: It is not so much a north-south divide as an inner city-town divide, or a city-town divide. There are some differences in attitudes between the more diverse cities and the less diverse towns, and that can be partly put down to social contact, but there are other factors. In some of those so-called red wall towns, people have relatively little social contact with migrants, and where they do, people have perhaps come to do specific jobs in specific industries. For example, the distribution sector is heavily reliant on a migrant workforce, and poor management of some of those local issues has perhaps impacted on public concerns.

In England, we have the controlling migration fund, which is quite a successful way of dealing with those local impacts: I think its money has been well spent. However, that funding will end, and no successor to that fund has yet been announced. It is vital that that fund is continued, and that its funding is increased if we can manage to do so.

David Goodhart: One of the problems with free movement was that it was so difficult to plan infrastructure: you had huge waves of immigration, and then it fell. We had that experience in 2011-12, when immigration came right down—I seem to remember that the Government almost hit their 100,000 target; net immigration was about 130,000 or 140,000—and then went whizzing up again when the impact of the eurozone crisis hit. That may not be a huge amount when spread across the whole country or lots of big urban centres, but it makes it very difficult to plan your doctors’ surgeries, your school intakes and so on at a micro level. That has been one of the really big problems with free movement, and I think it ought to be more manageable in the future. That has been one of the really big problems with free movement, and I think it ought to be more manageable in the future.

--- Later in debate ---

[Holly Lynch]

Q So the responsible thing for an Opposition to do would be to ask the Government to be explicit in putting all of those implications and those potential changes in the Bill?

Adrian Berry: Yes, because service users—us, the citizens—need to know what the law means. We are entitled to understand that. People who are affected by it need to know what it is. It is not good rule making to do it like this.

[Stuart C. McDonald]

Q Mr Berry, we have just heard some discussion about the possibility of citizens eligible for the settled status scheme not applying for it. For what reasons will people miss the deadline? Can you give us a flavour of why this might be a significant problem?

Adrian Berry: They might be leading disordered lives. They might have things happening in their lives that concentrate their minds elsewhere—family difficulties, work difficulties. They might be affected by coronavirus. They might have mental health impairments. They might be long-term sick. They might be old. They might be demented. There is a whole host of reasons that are part of the ordinary warp and weft of life why somebody might miss a deadline. Not everybody has my focus on the interests of the European Union (Withdrawal) Act and its implementing provisions. Ordinary people do not. There needs to be a benevolent regime that allows them to make late applications.

[Stuart C. McDonald]

Q How would a benevolent regime work? Do you have any ideas about how that could be done or how best it could be done?

Adrian Berry: Yes. You apply late; they grant it. It is that simple. Why would you not do that? Somebody wants to regularise their status and they have withdrawal agreement rights—why muck around?

[Stuart C. McDonald]

Q Okay. You spoke about the Henry VIII powers in relation to social security. You have touched on them a little bit in terms of immigration. Is this just par for the course—a Government helping themselves to sweeping immigration powers—not that that makes it any better, or is this a pretty extreme example?

Adrian Berry: The Government set their own Executive policy for making immigration rules anyway; the Bill does not change that. What the Bill does do is take away your powers to make primary legislation and give them to Ministers by way of regulations. If you want to reverse the way in which powers are distributed in the constitution, that is a matter for you, but personally speaking I think it is a bad idea.

[Stuart C. McDonald]

Q As we heard earlier, immigration rules have been revised thousands of times in the last 10 years. The defence of how we do it appears to be that it allows the Government to respond quickly. Is that in any way an adequate defence? How can we marry up the need for scrutiny with the need to act quickly at times?

Adrian Berry: The Bill does not change the situation that immigration rules are laid before Parliament under section 3 of the Immigration Act 1971. That continues anyway. What the Bill is doing is something discrete and different. It gives Ministers the power to amend primary legislation and retained EU law, which are two separate things. At the moment, the Home Secretary lays immigration rules before Parliament, and they deal with executive policy, not with laws. So, although they are called immigration rules, strictly speaking they are not legislation. The difference here is that this is a paragraph on legislation.

[Stuart C. McDonald]

Q I will just pick up on what you said a little earlier about mobility routes in some of the free trade negotiations that are going on. Can you just expand a little on what you understand is being negotiated in some of those agreements and on what those mobility arrangements might look like?

Adrian Berry: The Home Office position and the UK Government position is to draw on precedent-based treaties that the EU has with Canada, Japan and South Korea, and those treaties have mobility routes that reflect General Agreement on Trade in Services mode 4 commitments for persons who are coming here as short-term business visitors, key personnel, key senior staff and specialists, and also routes in free trade agreements for independent professionals, contractual suppliers and so on. All of those routes would be for 12 to 24 months; none of them would lead to settlement or permanent residence for short-term business visitors.

The UK’s ambition is that it will attract highly skilled people in that way, but only on a temporary basis, and if you are creating an economic migration regime in the Home Office paper, as was trailed in January, and you make no mention of that, it is some omission in the overall scheme, because you need to understand how it works.

The second thing that you really need to clearly understand is that the UK is like a little moon next to the planet Earth of the EU on this. There is a 450-million person territory next door to us that is setting its own economic migration rules and it is competing with us, and if you do not bear in mind what will happen in terms of economic migration in the EU—that you can come in for service provision or for work and have a route to settlement—and you are still creating this inbound regime into the UK, then you are not thinking about the impact of living next door to a much larger jurisdiction, and it is critical in the national interest that you do so.

[Stuart C. McDonald]

Q Ms Sankey, may I turn to you? You have spoken already about how rules around detention will apply to people impacted by the Bill. May I ask you about deportation powers, which became topical a couple of months back, with flights to Jamaica in particular being a source of controversy? How will the Bill impact deportation powers in relation to EU nationals, and what would you like to see changed about it?

Bella Sankey: Thanks very much for the question. The Bill will mean that, for the first time, EU citizens will have the deportation laws that currently apply to non-EU citizens applied to them. Those rules are blunt, they are harsh and they are dehumanising. In 2007, the last Labour Government brought in a power of mandatory deportation for anybody who receives a sentence of 12 months or longer. In 2014, when Theresa May was Home Secretary, the coalition Government introduced additional legislation that meant that if somebody was seeking to resist deportation on the grounds that they had a loving parental relationship with a child in the UK, or a child who was a British citizen, they would only be able to do so if the effect of their deportation would have an unduly harsh impact on that child.

The Home Office defines “unduly harsh” as “excessively cruel”, so at present it is insufficient, if you are a non-EEA national, to show that the impact on your child would be cruel; you need to show excessive cruelty. The effect of that provision means that child cruelty is legislated into our primary legislation. It means that the courts, when they are making these decisions, are forced to allow a deportation to go ahead even though they may find on the evidence that serious psychological harm will be done to a child. The courts are clearly very uncomfortable about that and have said explicitly, in terms, that immigration law can no longer be reconciled with family law principles, because family law principles require the best interests of a child to be taken into account in all public decision making.

That is the situation as it stands. The impact of these laws over the past decade or more has been to cause untold trauma and pain, particularly to Britain’s black community, who are disproportionately impacted because, as is well-known, they are a community that is over-represented in the criminal justice system and subject to social and economic deprivation.

The issue from earlier this year that you mention was, of course, a charter flight to Jamaica. The majority of the people booked on to that flight by the Home Office had drugs convictions—a lot of them when they were teenagers or a long time ago. The law as it stands did not allow any of that to be taken into account, because of the automatic and mandatory power to seek deportation of those individuals.

A number of our clients were victims of modern-day slavery, grooming and trafficking, but again, they found themselves in detention without an opportunity to raise the fact that they had been subjected to that, and of course the large majority of them had been in the UK since they were two or three years old and had been in primary school here and secondary school here. I see the Minister does not seem to be agreeing with this account.

[Kevin Foster]

No.

Bella Sankey: But it is all there on the public record. As I say, the law as it stands has applied in a blunt and discriminatory way against the black community, and this Bill now proposes to extend those harsh provisions to all EU citizens.

I spoke only recently to a woman who was actually removed to Poland on 30 April, leaving behind an 11-year-old child here. She felt that the system had already become unbearable. She was taken into detention following a conviction for theft, and when she was in Yarl’s Wood, without legal aid and without help and assistance, she decided that it would be easier for her and less traumatic for her 11-year-old son if she just went back to Poland. This Bill is going to bring about thousands more Sandras, thousands more family separations, in completely unjust circumstances.

--- Later in debate ---

[Holly Lynch]

Q Thank you. Your organisation asks for clarity about what people’s status and rights will be between the end of the transition period and the closing of the settlement scheme at the end of June. What are your members’ anxieties about that period?

Luke Piper: The Bill brings freedom of movement to an end at the end of this year, but it is not clear what legal status people will have between the end of the transition period, which is at the end of the year, and the end of June—the end of the grace period. There has been no clarity about, or understanding of, what legal rights people will have. We have simply been told that certain checks, such as on the right to work, will not be undertaken, but it is not clear to us or our members how people will be distinguished, both in practice and in law.

[Stuart C. McDonald]

Q Mr Piper, we have heard from the Home Office on the number of applications. We, like you, congratulate the Home Office on achieving significant reach. The problem, of course, is the number of people who will not apply in time. Are you able to give the Committee any indication of the scale of that problem, and who can we expect to be in that number?

Luke Piper: I caught the majority of the question, but let me repeat what I think you are asking: do we have an understanding of the number and type of people who will not apply on time? Is that correct?

[Stuart C. McDonald]

Exactly.

Luke Piper: Much as with the number of people due to apply for the scheme, we do not know. We have no idea of the exact number of EU citizens who need to apply under the EU settlement scheme, so we will not have an understanding of the number of people who miss the deadline. An illustration is the way we look at Bulgarian citizens in the UK. Their population has been estimated at 109,000; however, as of the end of March, over 171,000 Bulgarian nationals had submitted applications. It looked as though Bulgarian residents had already applied, yet more applications keep coming. We do not have a clear indication of the exact number of people who will not apply on time.

As for the type of people, we know that those most at risk and who are marginalised and disenfranchised are very likely to not apply, purely for the reasons that Mr Berry set out—various issues to do with connection to society, disability and so forth. Our concern is that the most marginalised and vulnerable in our society will be at risk, and that has been corroborated by a lot of organisations. You will hear from a representative of The Children’s Society after me, who will set out the particular risks for children and young persons. Conversely, we have significant concerns about older people, particularly those with issues such as mental ill health and dementia.

[Stuart C. McDonald]

Q Coming back to the scale of the problem, looking at international, or even UK, examples of where Governments have tried to encourage citizens to sign up for a scheme, how close to 100% do they tend to get? Do you have any idea?

Luke Piper: That is a very important point. The most successful UK scheme that involved people signing up to certain policies was the digital-only scheme—the switch by everyone to digital TV. That was successful, as 97% of people had signed up by the time analogue TV was switched off. If you place that projection over the estimated population of EU citizens, and say that a remaining 3% will not switch, you are looking at more than 100,000 people who will lose their legal right to live in this country and will face all the problems that we talked about of not having a home, losing their job, and potentially facing detention and removal from the UK.

[Stuart C. McDonald]

Q That is a huge problem, in terms of scale and the nature of the rights that those people would lose. One proposal that has been rejected in previous debates is a declaratory system. Are there other options to try to protect as many of these people as possible?

Luke Piper: The declaratory model is what we have advocated for. If we follow through with a constitutive system, which is what is being proposed, simply improving awareness of the scheme will not be sufficient, as is demonstrated by even the most successful campaigns, which do not achieve 100%. There have to be legal mechanisms in place to ensure that people have the safety that they need to transition to their new rights.

In particular, we suggest that amendments be adopted, including amendments setting out clear definitions of who cannot apply after June 2021, as opposed to who can. We feel that it will assist both Parliament and the Home Office if we can clearly pin down exactly who we do not want applying after the deadline. Furthermore, we could introduce mechanisms through which we could extend the grace period if necessary. We should understand what extending the grace period may look like, and what factors will be taken into consideration. We need to recognise that those who apply after June 2021, who will have no legal basis to be here, will need some form of retrospective mechanism, so that when they do secure their status, their previous periods of unlawful residence are secured.

[Stuart C. McDonald]

Q So your first choice to resolve these issues is a declaratory system. In response to that, the Government tend to argue—if I understand them correctly—that making the system declaratory will mean that people will not apply for proof of status, and that will leave them exposed to the hostile environment and so on. What do you make of that argument?

Luke Piper: I think that unfortunately misrepresents our proposal. The declaratory system is a safety net. We are not advocating for a system where people should not have a deadline by which they must register. Indeed, we believe that there should be incentives and encouragement for people to register. The problem is the consequences for those who do not register in time. Under the current model, if you do not apply, you essentially become illegal in the UK, and you face immense amounts of problems, whereas under a declaratory model, the consequence is that you face inconvenience.

[Stuart C. McDonald]

Q Finally, do you have any concerns about the number of people who appear to be getting pre-settled status, as opposed to settled status, and the implications that that has for them?

Luke Piper: You were a little muffled there, but I think you were pointing to the issues surrounding having pre-settled status, as opposed to settled status. Is that right?

[Stuart C. McDonald]

Yes.

Luke Piper: On the ratio of those acquiring pre-settled status to those with settled status, the trend is not looking great. The estimates that we have been working to suggest that the number of people acquiring settled status is a lot lower than it should be, and indeed the number of people getting pre-settled status is too high. That will, in effect, mean that rather than there being one deadline—June 2021—there will be lots of deadlines for lots of different people, at the various periods when their pre-settled status expires.

[Stuart C. McDonald]

Q Does that have implications for people’s rights—for example, to social security—in the meantime?

Luke Piper: It does, yes. It has quite significant implications for a person’s rights. Those with settled status have complete access to welfare benefits and housing support, which is vital at a time when a lot of people are struggling to retain their employment and their home. Those with pre-settled status do not have an automatic right to access those services and that support; they have to go through further tests and bear further burdens to access that help. This is causing significant problems for people whom we represent; we have seen a significant increase in the number of people experiencing problems in getting help and support because they have pre-settled status as opposed to settled status.

--- Later in debate ---

[Holly Lynch]

No problem. The Minister had presented a conundrum, but we are saying that if those children—bearing in mind that they have had a very difficult start in life—were granted settled status in a declaratory system through the local authorities, and they had both digital confirmation of that and physical proof, it would resolve the problem that the Minister put to you.

Lucy Leon: Yes. We are very much in agreement. That is why we support the 3million recommendation on physical documents as well.

[Stuart C. McDonald]

Q Thank you for calling in, Lucy. You are proposing that the status of these kids is set out in law, but they should apply in order to get proof of that status. Is that right?

Lucy Leon: Yes, that is what we are suggesting.

[Stuart C. McDonald]

Q Perhaps a user-friendly comparison would be British citizenship. Lots of children are born in this country with the status of British citizen. They obviously do not have a document, but whenever it becomes convenient for them, they apply for a passport or another means of proof. Is that a fair parallel?

Lucy Leon: Sorry, I did not get that full question.

[Stuart C. McDonald]

I was just trying to draw a parallel with the status of kids who are born British citizens. Their rights come from a statute, just like you are proposing with these kids getting their rights in a statute, but they still end up—at some point, if it is convenient for them—applying to have proof of that status. But the rights come from a statute.

Lucy Leon: I am sorry. I cannot hear the question; the line is not very clear at all.

[Stuart C. McDonald]

Q Sorry about that. We will leave that for debates later in the week.

The Bill may mean that we end up with EU citizens and children stuck with “no recourse to public funds” conditions on their visas in years to come. How difficult do “no recourse to public funds” provisions and conditions make life for children and their families?

Lucy Leon: Sorry. It seems that the microphones are now moving around. Were you asking how difficult the NRPF conditions are for children and their families?

[Stuart C. McDonald]

Yes.

Lucy Leon: We have worked with children and families with no recourse to public funds for well over 10 years. We have a lot of experience through our services, and recently published a policy report called “A Lifeline for All”, which highlights the impact of this condition on children and families. One of the key issues is that families with no recourse to public funds have no access to mainstream services, or to housing and local welfare assistance schemes. Many of those who are fleeing domestic violence cannot access most safe accommodation either.

The policy has been continued under successive Governments, but that really does not mean it is the right one. It is hugely detrimental to children’s welfare to have a childhood characterised by deep poverty throughout, with the family stuck in a cycle of poverty, vulnerability and abuse, and the child at real risk of exploitation because they have no other lifeline to turn to. We also see the hugely detrimental impact that it has on children’s and young people’s mental health and emotional wellbeing to grow up in such long-term poverty.

In terms of educational opportunities and chances, we also see a higher prevalence of special educational needs among those children in families with NRPF that we have worked with. It is more than just financial support that these families need and are missing out on; it is the access to wider services and support.

[Stuart C. McDonald]

Q Finally, in your briefing you speak about the significant fees and the NHS charge, for example, that families have to contend with. This Bill will mean that in future, European economic area families will face significant visa fees, NHS surcharges and so on. Can you say a little bit about your concerns on that?

Lucy Leon: We have significant concerns about those families. They are families who are already paying into the system. Most of the families we work with are single parents, often in jobs that are now seen as key worker jobs—working in hospitals, in cleaning, in catering or as delivery drivers. They are working families already; it is just that their income does not meet their family’s needs. They are also paying immigration application fees and the immigration health surcharge, so on top of living with no access to any mainstream benefits or extra support, they continually have to try to save up for the next tranche of fees that they will have to pay every two and a half years. They are stuck in an ongoing cycle of debt.

We have seen families lose contact with their social networks because they have had to borrow money, because that is their only means of survival. We are calling for a reduction in immigration fees to at least cost price, and for citizenship fees for children to be waived, because we are doubly penalising children in those families by increasing the levy charged on them, on top of their restricted access to public funds.

[Stuart C. McDonald]

Thank you very much.

[The Chair]

Thank you very much for your evidence. I am sorry that the sound quality was not very good, but thank you for making the time and effort to come.

Lucy Leon: That is fine. I apologise for missing some of the questions. We are more than happy to submit further documentary evidence on the questions that I have been unable to answer.

--- Later in debate ---

[Holly Lynch]

Q We have heard evidence this afternoon from other witnesses regarding their concerns about some of the Henry VIII powers in the Bill. May I ask you to share your thoughts on those, and what they mean not only for parliamentary democracy, but for practitioners of law? Do you have concerns about them?

Alison Harvey: Very much the concerns that Mr Berry expressed about certainty. If it is said that provisions of retained EU law are not compatible with the Immigration Act, please can we have a list? Tell us what they are. You must know, Home Office, otherwise you are not going to be able to operate the system. As he said, we had the European Union (Withdrawal) Act 2018 and the European Union (Withdrawal Agreement) Act 2020, both of which essentially give us powers to save EU law. They also give us powers to knock out retained EU law bit by bit, so what is the point of the Bill at all, in substance terms?

I think the point must be, because immigration is a sensitive area and because it involves people, to give you the opportunity to put in place safeguards. I suppose the Bill goes beyond the European Union (Withdrawal) Act and the European Union (Withdrawal Agreement) Act in that it would allow you to build a new system. There are wider powers of delegated legislation. I think most of the repeals could have been done under those Acts. If you want to test that, you go back to March, when the Immigration, Nationality and Asylum (EU Exit) Regulations 2019 were passed. Look at some of the things that they do: “Let’s give all Gibraltarians a right to apply for British citizenship.” There are big chunky powers in those regulations that are not in the Bill.

The Bill is an opportunity to put some brakes in. What is astonishing is that the Bill looks almost the same as it did last time it appeared; yet last time we did not have a withdrawal agreement. All the wait and see markers that justified not putting something in primary legislation have gone. Similarly, although the Home Office delegated powers memorandum has got longer it has produced, for example, absolutely no more substance on why the powers on fees are needed. The Delegated Powers and Regulatory Reform Committee said that this is so unsubstantial you cannot even say it is a skeleton.

There really is no justification to explain why there possibly need to be those powers. It creates tremendous uncertainty. It certainly creates lots of opportunities for litigation; to go in and argue that, no, something is not incompatible. That does not seem to me helpful at all.

Ian Robinson: Alison has said everything that I could and more.

[Stuart C. McDonald]

Q Alison Harvey, may I first go back to the idea that Professor Ryan was speaking about earlier: the notion of persons of Northern Ireland? The reason that would be useful would be to explain who has certain rights, in terms of family immigration rules or protections against deportation, for example, without having to claim British citizenship or to identify as a British citizen under the Belfast agreement.

Alison Harvey: We have two groups. Proposed new section 3ZA to the Immigration Act is about the Irish in Britain, wherever born—all the Irish; anyone who holds an Irish passport—and it gives them protection wherever they enter the UK, so that if they come from Belfast and go for a weekend in Paris they have not lost all their rights just by spending a weekend in Paris, which technically in law at the moment they have.

The other group are the people of Northern Ireland, who are the people born on the soil of Northern Ireland. Those people, under the Belfast agreement, have the right to identify as British, Irish or both. The question is how you give effect to that right, because at the moment it is argued that you give effect to it by going through a renunciation process, which costs money and makes it very difficult for somebody to identify solely as Irish.

We have provided in the EU settlement scheme for the people of Northern Ireland—those who are born there—to be treated in the same way for family immigration purposes as EEA nationals. That is a fairly short-term right—not a short short-term right, but obviously one that is on the way out because we are leaving the EU and that advantage will disappear over time; it will not apply to new arrivals and it will not apply to the people of Northern Ireland who form subsequent relationships.

So we have said that we will make it not matter whether you are British or Irish, or both, because you will not be at a practical disadvantage. But what people would like to be able to do is identify as Irish without having to give up a British citizenship they never felt they held. That was a point made by Emma DeSouza in her litigation. That litigation ended because it was a case brought by her partner about his EU law rights. So although their arguments were about her ability to identify as Irish, that was not the crux of their case; their case was an EU case, so it died with the changes.

I have put forward in my paper a series of proposals as to how we could fairly simply amend the law to give effect to that aspiration, without in any way damaging the aspiration of those in Northern Ireland who say, “I in no way want to be treated any differently from anyone else anywhere else in the UK”. I think we can square that circle.

[Stuart C. McDonald]

Q You spoke earlier about how new immigration legislation always leads to challenges around transition and the need for transitional protections. Were you speaking then about EU nationals who are already here in the settlement scheme, or were you talking about a wider set of transitional concerns?

Alison Harvey: With any change, you have to decide what you do; it takes five years to get to settlement. What perhaps worries me most when I look at the points-based paper and those proposals is that rather than saying, “This is where we want to end up—how do we get there?”, they are all about what we are going to do next. Therefore, the fear is that we will never get where we want to end up, because we are rushing things, in a way.

As I say, this is a massive change. When Vivienne Stern of Universities UK gave her evidence to the Committee, she said, “Universities will recover from this. The question for us is, what is going to happen in the short to medium term?” I think it is very similar for the immigration system. In the short to medium term, maybe the recessionary effects of covid will mean that there is less need for people, but the short to medium term is the bit that that paper does not even regard as a problem; it just says that this is what we want, and I think that is not realistic. The attention has been focused, for good reason, on the stock of EU nationals—the people who are here—but what will really hurt business is the flow, or the cutting off of that flow.

Mr Robinson has made the point that our system is quicker than that of many countries, but employers are used to it being a lot quicker, and the employers who have the least difficulty are the global multinationals, which have the persons already employed in one part and can move them across. The solely British business, which does not have an overseas branch, has the most disadvantages. It is a bit like the recovery after the pandemic, and the supermarkets have actually done really well during it and the corner shop has closed. It is that sort of thing—this change will advantage the very people who you would have thought, given the Brexit ideology, were the people who were supposed to face a bit more competition from the Brits.

[Stuart C. McDonald]

Q Is that a fair point, Mr Robinson, that those companies that are already tier 2 will have a significant head-start—they may find that processes slow up a bit, but at least they are well established and know these procedures inside out, and it will be the many, many thousands of businesses that have no experience of employing from outside the EU that will face a huge challenge?

Ian Robinson: Yes, that is spot on. If I were to have two conversations,

one with an established tier 2 sponsor and one with a new employer using the system for the first time, the first conversation would be to say, “Okay, the systems that you have will become simpler and quicker, because there will be no advertising, no cap and so on. You will be able to bring more people through sponsorship, because skill level is going down.” It will be more expensive and it will be slower than free movement, but overall, frankly, they can absorb it.

If I then pick up the phone to an employer who has never used the system, they will probably spend between two and four weeks collecting documentation in order to put together an application. The application right now is typically taking four to six weeks, against an eight-week service standard. If we have a rush of employers applying for licences, it seems quite possible that, towards the end of the year or the beginning of next year, that lead-in time will become much longer, during which time they could miss out on an opportunity or a worker.

Then you get to the kicker: if you are sponsoring Stuart, who is single and coming in for three years, for an SME that would cost about £4,000 and for a larger employer it would be about £5,500. If you were coming in with a partner and three children for three years, that would be £17,000 in Government fees, not including the other associated costs.

[Stuart C. McDonald]

Q I daresay that some of the larger companies you may work for will absorb quite a lot of those costs themselves, but if you are running a small business with limited margins, you may not be able to pay the health surcharge that bringing somebody in entails. You will then be left in a place where you are offering a job to somebody, but it comes with a £5,000, £10,000 or £15,000 price tag for that individual, whereas they might have a job offer from Dublin or anywhere else in the EU that involved no such difficulty.

Ian Robinson: Yes, that is fair. If you are coming in as a single person and you are covering your own fees, it is broadly £600 for a three-year visa. You will be paying an extra £624 a year for the health surcharge. You get to indefinite leave to remain, which is about £2,200 or £2,300, and then citizenship is about another £1,200. If you add that up, as I am about to attempt to, it would be not far off £10,000 just to get through to citizenship. If we assume that you are on £26,000 a year and clearing however much of that, it is a hell of a cut. If you also have children, you have to pay another £10,000 each.

[Stuart C. McDonald]

Q All things being equal, the job in Dublin seems significantly more attractive. You will not be surprised if I turn to the issue of Scotland. I should explain to the Committee that a few months back, I and Westminster colleagues instructed Fragomen to produce a report on behalf of the Scottish National party, looking into what other countries do about having a differentiated system for different parts of the country, and looking for options that might work for Scotland and, indeed, other parts of the UK. Would you be able to summarise that work and its conclusions as best you can in a few sentences?

Ian Robinson: We made several suggestions on simplifications for employers and individuals in Scotland: lower salary requirements, faster routes to settlement and so forth. The headline finding was that if the political will were there, it would be quite possible to continue free movement in Scotland after free movement ended for the rest of the UK. I appreciate that that may seem counter-intuitive to some people in the room, but the rationale is that, if you were to continue to operate free movement in Scotland, people would be able to move there and live and work on the structure of their European passport. The obvious challenge is what happens if they subsequently want to move to the UK, as some may, because at that point they would need to have permission to live and work in the UK, just as any other migrant would.

One of the challenges we have had is whether that would turn Scotland into a back door for England, Wales and Northern Ireland. It is hard to make that argument when you consider that the front door is open, given that there will be no visit visa requirement for Europeans coming to the UK. If you were a German who wanted to work in the UK and were content to do so illegally, there would be no incentive to go through Scotland first. You would jump on an easyJet flight into Stansted, maybe not even see an immigration officer and start work if you were so minded.

[Stuart C. McDonald]

Q I suppose the broader point is that we operate a land border and a common travel area with a country that has free movement and a completely independent immigration system.

Ian Robinson: Yes.

[Stuart C. McDonald]

Q And so it would not involve borders at Berwick or whatever else.

Ian Robinson: No. The Government is content that the compliance environment/hostile environment measures that we have in place are sufficient to stop illegal migration and working from tourists. It would be equally capable of stopping that sort of migration from Scotland.

[Stuart C. McDonald]

Q Alison, any thoughts on the notion that you could have different rules for Scotland or Northern Ireland, which will face significant challenges as it shares a land border with an area that is still part of the free movement landscape?

Alison Harvey: It is partly that and partly that we are small, so you can travel a long way quickly. If you give someone a visa for one part of Australia, it works very differently. I remember asking the Australian Minister about that, and he said that it was salary that glued people to the Northern Territory.

In our current points-based system, a tier 2 skilled worker works for a particular employer, so it is not that much of a leap to say, “You must work for the employer in X, Y and Z offices.” Applying it generally may be more complicated, but applying it to workers who work for an employer—whether they are highly skilled or low skilled does not matter—is easier. If you are someone who is on a payroll, it is easier to envisage it working. It becomes more complicated to stop people moving around outside the paid employer—they must be employed by that person.

Ian Robinson: A very quick point: right now, you sponsor a particular person to work for a particular employer in a particular location. If that location changes, the Home Office must be notified. I could not say how much scrutiny they give to that—I do not think it is a great deal—but employers are already reporting on that sort of thing.

[Stuart C. McDonald]

Q I have a final question. Alison, you have obviously been critical of the nature of this Bill. Politicians would say that it gives the Home Office a blank cheque. As you say, last year, the answer appeared to be, “Wait and see. We have to be ready for whatever the outcome of the negotiations is.” This year, it seems to be, “Well, we have to move quickly.” How should we be going about making immigration policy in a way that gets the balance right between allowing some degree of flexibility and speed, and getting a significantly greater degree of scrutiny that does not allow thousands of changes to be made to the immigration rules without an MP batting their eyes?

Alison Harvey: I think Wendy Williams has given you an excellent blueprint in the Windrush lessons learned review. Although those recommendations emerged from Windrush, what she is saying is that you get a Windrush when you have a lack of understanding of your own laws. Complexity makes that understanding so difficult to achieve, as happened with Windrush. She recommends the consolidation of legislation. It is obvious. We need to do that through a consolidation Bill.

We have to have a self-denying ordinance so that no one is trying to change it—not the Government, not the Opposition—and we just get in and consolidate what we have got. Then we go in and change it afterwards. It is difficult enough to consolidate it. It can then go through the consolidated Bill procedure in Parliament, which is the only way you would ever get a consolidated Bill through Parliament without abandoning all other business in the Session to deal with it.

If the Immigration Act 1971 was our “going into the EU” immigration Act, we now need to start again and build up from the top. We need to think much more teleologically about where we want to be and what we want to achieve, rather than start with the how. The problem with the current paper is that it starts with the how and ignores where we are. It cannot cope with pressure such as from the pandemic and its effects on the economy. It is a rigid system full of teeny little routes. We do not need that; we need an idea of what the end result looks like, and then we can look at how to get there. We need a lot more sensitivity to regions, so we need to devolve down a great deal to regions such as Scotland, where immigration is needed. In Somerset, where I come from, the agricultural crisis is going to be huge.

[The Chair]

Thank you very much. I am afraid that it is 5 o’clock, and the rules state that I have now to ask the Whip—it is his moment of glory—to move the adjournment motion.

Ordered, That further consideration be now adjourned. —(Tom Pursglove.)

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

Stuart C McDonald Excerpts

Committee stage & Committee Debate: 4th sitting: House of Commons
Thursday 11th June 2020 Public Bill Committees

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

It is a pleasure to see you in the Chair, Mr Stringer. I am grateful to the Minister for his extensive response, but he is right in one thing, which is that he has not fully satisfied me about the need for these powers. Much of what he said related to how the Government propose to use these powers or what they are planning to do, but that is not how we should go about assessing whether the scope of the powers is appropriate. We need to assess what the scope of these powers would, in theory, allow the Government to do, and that goes way beyond what he set out.

We do not hand powers to the Government on the basis of assurances that they are going to do only a, b and c. Listening to the list of proposals the Minister made, I am utterly unconvinced that that could not be done very simply with a much more narrowly drawn clause and power. Nothing in any of these amendments would stop the Government bringing free movement to an end—sadly.

The Minister alluded to the fact that some of this is about trying to limit the scope for judicial oversight. I am trying to keep MPs in a job here scrutinising legislation, but I am also trying to make sure the judiciary is not excluded from the proper review of the use of Executive power. The House of Lords Delegated Powers and Regulatory Reform Committee said that these are “significant” powers and also used the word “disturbing” at one point, so I am afraid I cannot accept the Minister’s explanation that they are justified.

On amendment 22, I am disappointed that the Minister did not engage with the principles themselves, because other amendments have been tabled with respect to the principles of immigration law and we are constrained by the scope of this Bill to limiting these amendments to dealing with EU, EEA and Swiss nationals. Although that does not mean we think we should be confined in this way to them, it is in the Government’s gift to extend this much more broadly, so I am very disappointed that he did not engage with what those principles are. I hope we will have a fuller debate when we come to other amendments. On that basis, I shall press amendment 2 to a vote.

Question put, That the amendment be made.

--- Later in debate ---

The Government used to say that work was a route out of poverty, and that is popular. Some 68% of the public—over two thirds—agree, according to British Future. Our neighbours across Europe have even taken this step, and although we are leaving the EU, we are consistently told that we are not leaving Europe behind. So what is stopping us? Let us take this practical step, support amendment 13 and lift the ban, to allow these people to work if a decision is not made within six months. Let’s just do the right thing.

[Stuart C. McDonald]

I echo entirely the comments of both Members who have spoken so far, the hon. Members for Halifax and for Coventry North West. In short, people who apply for refugee status in this country should not as a result be trapped in poverty for months on end, if not years, simply because they made that claim, but that is the situation that far too many asylum seekers find themselves in.

All the arguments in favour of lifting the ban have been set out very well. We all know that an absence from the job market for several months, if not years, can be hugely detrimental to people’s long-term prospects, regardless of all the other challenges that asylum seekers face in terms of integration. This change would provide a route out of poverty, saving money for the Government, given the savings that they would make on asylum support. It is a popular proposal among the public as well and would bring this country into line with many other countries in Europe and beyond.

This proposal should also be popular with MPs right across this House, and I think there are MPs in every single party who support it. While I do not expect the Government to make any major announcements today, I would be interested to hear the Minister say at least something about his thinking on this issue and whether he and his colleagues are giving serious consideration to doing something to stop people being left for months on end without any prospect of work or being able to get themselves out of poverty.

[Kate Green (Stretford and Urmston) (Lab)]

I, too, endorse the speeches we have heard in relation to this amendment. I only want to make two points to the Minister. First, the long delays in processing asylum applications and then appeals is, I think we can agree, a real concern for everybody in this House. The problem with having a ban on asylum seekers working is that there is very little incentive for the Home Office to make rapid progress in dealing with those cases. Indeed, given that 45% of appeals now succeed, it seems that we are taking a very long time to fail to give the chance to work to people who will ultimately obtain it.

Secondly, I want to ask the Minister a question that follows on from the one asked a few moments ago about his personal attitude towards lifting the ban on asylum seekers’ right to work. In the last Parliament, the previous Home Secretary, the right hon. Member for Bromsgrove (Sajid Javid), undertook to carry out a review of the policy and to give consideration to whether it needed to be revised. I do not think we ever heard the outcome of that review. It would be helpful to know whether the Home Office continues to conduct that review, when we might hear the outcome of it and whether evidence to support such a review is being sought from civil society and from parliamentary colleagues who might wish to submit ideas. It has been a long time since that commitment was made to the Home Affairs Committee, and it would be good to hear the status of that review.

--- Later in debate ---

Division 5

Ayes: 6

---

Labour: 5
Scottish National Party: 1

Noes: 8

---

Conservative: 8

[Stuart C. McDonald]

I beg to move amendment 5, in clause 4, page 3, line 9, leave out subsection (6).

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.

[The Chair]

With this it will be convenient to discuss the following:

Amendment 6, in clause 4, page 3, line 14, leave out “other”.

This amendment is consequential on Amendment 5.

Amendment 9, in clause 4, page 3, line 14, leave out from “(1)” to “is”.

This amendment, along with Amendment 8 will ensure that all regulations made under Clause 4(1) are subject to the affirmative procedure.

Amendment 8, in clause 4, page 3, line 18, leave out subsection (8).

This amendment, along with Amendment 9 will ensure that all regulations made under Clause 4(1) are subject to the affirmative procedure.

[Stuart C. McDonald]

We are back to the nuts and bolts of delegated legislation. This time, rather than considering the scope of the powers, we are looking at the procedures that should be used when they are exercised. Amendment 5 is designed to keep MPs in a job: we should be ensuring that we maximise our role in scrutinising what the Government do with their power to make laws.

Clause 4(6) to (10) sets out the procedures for making these regulations. I apologise in advance, Mr Stringer, if I get some of the terminology wrong. Even after five years in this place, I still regularly confuse my made affirmative, affirmative and negative procedures. As I understand it, the most extreme made affirmative procedure is allowed for the first set of regulations that would be made under the clause. That means that the Government would be able to bring rules into force immediately, before MPs had the chance to scrutinise the proposals. MPs would then have 40 days to pass an affirmative resolution to keep the rules in place. No good parliamentarian should ever be comfortable allowing the Government to bring rules into force before we even have the chance to look at them.

The more usual affirmative procedure would apply to subsequent draft statutory instruments through which the Government were amending Acts of Parliament. That too is a really drastic power, but it would mean that nothing came into force until we positively approved it. Although I object to Henry VIII powers for rewriting Acts of Parliament, if they must exist, that should be the method for regulation making here.

Other regulations that do not directly impact on Acts of Parliament would use the much less satisfactory negative procedure. Although a draft of those regulations would still be tabled before they came into force, they would almost inevitably do so unless, exceptionally, Parliament prayed against that negative resolution. All these amendments do is ensure that MPs have their say, and have a proper role in scrutinising the Government before regulations come into force, which is important given the very important subject, and the effect that these provisions could have on immigration law. I hope the Committee will be sympathetic to what we argue for.

[Holly Lynch]

As the SNP spokesperson says, this group of amendments, like most of those in the previous group, continues to seek to limit the transfer of powers to the Executive and away from Parliament. We have gone over the arguments against such sweeping Henry VIII powers in principle at length, so I will not repeat those. This group largely seeks to ensure that regulations made under clause 4 are subject to the affirmative procedure, and to leave out subsection (6).

Martin McTague from the Federation of Small Businesses was I think the only witness who said in his evidence on Tuesday that he actually did see some merit in the powers in clause 4, yet when asked further, he was keen to stress that

“the Home Secretary will be answerable to Parliament about the decisions that she or he has made. That would be a way in which Parliament could ensure there was proper scrutiny.”––[Official Report, Immigration and Social Security Co-ordination (EU Withdrawal) Bill Public Bill Committee, 9 June 2020; c. 14, Q29.]

However, as the Bill stands, proper scrutiny will be missing.

As has been said, proper scrutiny is exactly what we are in the business of in this place. It is why the Government say they have thrown caution to the wind in returning to a physical Parliament when we could have been undertaking our duties from home, as is still the public health advice. If the Leader of the House is such a big fan of parliamentary scrutiny, why are we going to such lengths to avoid it with these powers? Putting changes through the affirmative procedure has to be the way forward if we are to shape legislation for the better and deliver on parliamentary democracy. That is why we support this group of amendments.

[Kevin Foster]

I thank the hon. Member for Cumbernauld, Kilsyth and Kirkintilloch East for speaking to his further amendments on clause 4. Amendments 5, 6, 8 and 9 deal with the parliamentary procedure for regulations made under the clause 4 powers, as has been outlined. The made affirmatory procedure is needed in the event that there is a short window between the Bill’s Royal Assent and the end of the transition period on 31 December 2020. This is why the provision for the affirmative procedure that the hon. Gentleman and the hon. Member for Halifax have suggested would not work. Free movement must end on 31 December at the end of the transition period, and it is important to ensure that regulations made under this power align the treatment of European economic area and non-EEA citizens who arrive in the UK from 1 January 2021.

To clarify, under the made affirmative procedure, Parliament will be asked to approve the regulations within 40 days of their being made to enable them to continue in force, so Parliament does have scrutiny of the use of this power. If either House does not approve the regulations, they will cease to have effect, but subsection (10) preserves the effect of anything done under these regulations before that point to ensure legal certainty—in essence, for someone who is granted immigration leave after applying under a rule that would come into effect on 1 January.

Using this power does not mean avoiding parliamentary scrutiny. The secondary legislation to be made under this power is still subject to full parliamentary oversight under the established procedures, although I expect the hon. Member for Cumbernauld, Kilsyth and Kirkintilloch East may actually be disappointed at just how limited and benign they end up being. It is important to debate the appropriate use of delegated powers, but the Government are committed to ending free movement now that we have left the EU, and this clause is an essential part of delivering that and ensuring that it can be done, with the new system in place, on 1 January 2021. We therefore cannot accept these amendments.

[Stuart C. McDonald]

I am grateful to the Minister for his explanation. I am not convinced that there will be a time problem between the Bill coming into force and the end of the transition period, so I insist on pressing amendment 5 to a vote.

Question put, That the amendment be made.

Division 6

Ayes: 6

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Labour: 5
Scottish National Party: 1

Noes: 8

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Conservative: 8

[Stuart C. McDonald]

I beg to move amendment 1, in clause 4, 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.

[The Chair]

With this it will be convenient to discuss new clause 34—Visa requirements for certain family visas: coronavirus—

“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 is designed to ensure 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

[Stuart C. McDonald]

I have put amendment 1 at the top of my list because the subject is very close to my heart. It is on a huge issue with our so-called family migration rules. I call them anti-family migration rules, because they have been responsible for splitting apart tens of thousands of families; they have some of the most draconian requirements in the entire world. I cannot believe that most Conservative MPs are not at least uncomfortable with the rules, if not downright embarrassed and ashamed. Theirs is the party of the family, for goodness’ sake.

By imposing the financial threshold on our constituents, we say to many of them—half the population, in fact—“You do not earn enough money to live in your home country with your family if you were to marry somebody from outside the EU,” and in future it will be anybody outside the common travel area. We are saying to them: “You have to choose between your country and your family.” That is absolutely barbaric. The impact of the rules will grow every year if we pass this Bill as it is, because the rules that apply to those in relationships with non-EEA nationals will for the first time extend to those in relationships with EEA nationals.

I want to start with a neat summary of the issue in a statement made by Bishop William Nolan and Bishop Paul McAleenan, the lead bishops for migrants and refugees from the Catholic Bishops’ Conferences of Scotland and of England and Wales respectively:

“The minimum income threshold for family visas unjustly separates tens of thousands of couples, parents and children. Without reforms, the end of free movement will result in even more families being kept apart by this policy. Some key workers who have played a vital role during the Covid-19 pandemic are among those who cannot be reunited with their families because they do not meet the minimum income threshold. This separation not only has serious implications on family life, but also has a direct impact on the development and wellbeing of children who are isolated from their parents in another country.”

That is the issue in a nutshell. There are other egregious features of the rules that I will come to in a minute.

The Children’s Commissioner for England prepared a report called “Family Friendly? The impact on children of the Family Migration Rules”, which is a review of the financial thresholds that the amendment and the new clause focus on. It was published in 2015 and it concluded:

“the financial requirements introduced in 2012 have been responsible for the separation of thousands of British children from a parent.”

Such requirements

“cannot be met by almost half of adult British citizens, including many in full-time work, particularly the young, the retired, women, ethnic minorities and those living outside London and the South East.”

What we usually get back by way of defence from the Government is, “We asked the Migration Advisory Committee and it came up with the threshold of £18,600.” It is true that that committee was tasked with a bit of work, but it was not asked to come up with a general view of how the family migration rules should be formulated. It was asked to come up with a figure at which it could be said that people could support a family without becoming a burden on the state; that is how it was put. That is a perverse way to pose the question, given that when people come here on family visas, they are not allowed to become a so-called burden on the state because they are prohibited from accessing public funds.

As the MAC made clear, in doing its work, it was not in any way making recommendations that gave consideration to what is required of the UK under its international and domestic human rights obligations to respect private family life or consider the best interests of children.

--- Later in debate ---

I can be clear that the concessions that we have put in place to ensure that families are not unduly affected by a temporary loss of income due to covid-19, when it comes to meeting the minimum income requirement, already extend to EEA and Swiss nationals and their family members, and will continue to apply if necessary in the future. New clause 34, which would apply only to EEA or Swiss nationals, is therefore both unnecessary and, by treating certain groups of migrants more favourably than others without any particular justification for doing so, potentially discriminatory. The concessions that we have made apply to all, regardless of where their passport is from. For those reasons, I request that the hon. Member for Cumbernauld, Kilsyth and Kirkintilloch East consider withdrawing amendment 1 and new clause 34.

[Stuart C. McDonald]

I am very grateful to the Minister for his response. I will not press either amendment 1 or new clause 34 to a vote, but for slightly different reasons. On new clause 34, I am grateful for the assurances with regard to the impact of the coronavirus shutdown on incomes, and I look forward to the Minister’s letter, which I will obviously look at closely, and the scheme that is being put in place. We will no doubt return to that issue in the weeks and months ahead.

I will not press amendment 1 to a vote because I may wish to revisit it on Report. I do not think that people fully grasp the impact that this issue is having on families out there. The tier-2 alternative is not realistic for lots of families. My recollection of the test of maintaining and accommodating one’s family without recourse to public funds was that it worked perfectly well but, as I said in my original submissions, there are other ways in which we could do it: we could have a lower threshold, such as the minimum wage or the living wage. We could do things differently and still provide certainty.

On the subject of certainty, it is no reassurance to someone if their only certainty is that they cannot live in this country with their loved ones. The Minister said that the threshold had been set at a suitable level, but it excludes almost half of the country from being able to be joined by their husband, wife or partner from overseas—in Northern Ireland, I think, it even excludes more than half, because of the different wage levels.

The so-called “exceptional circumstances” route just does not work; that was the bare minimum that the Home Office had to put in place because of a Supreme Court challenge about how awful these rules were. In terms of public confidence, I think that the more members of the public find out about these rules, the more they will be horrified at how the UK Government treat UK citizens.

These are miserable rules. I hope people will go away and think again, even if they do not want to go back wholesale to the position as it was before 2012. We cannot let this continue—more than that, we cannot let it escalate. Tens of thousands of families are already impacted, and in the next decade there will be tens of thousands more. They will all come to our surgeries. The Government have been warned. But I will keep that point for Report. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Stuart C. McDonald]

I beg to move amendment 14, in clause 4, 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 with whom they lived while residing in the EEA or Switzerland.

(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.”

This amendment would mean UK citizens who had been living in the EEA or Switzerland but wish to return to the UK, could continue to be accompanied or joined in the UK by close family members who would otherwise lose their rights (under the Surinder Singh route) because of this Act.

I am being kept busy this afternoon. I am pleased to move amendment 14. Once again, it is all about family. We are talking about what became known as the Surinder Singh route, because of a judgment of the European Court of Justice. I talked in my previous contribution about the unfairness of separation that immigration rules can cause; in the case of the Surinder Singh families, that is coupled with a real sense of unfairness and the loss of a legitimate expectation.

We are talking about UK citizens who have gone to live somewhere in the EEA at a time when the rules were quite clear that the UK was part of the European Union, so there would never be any conceivable difficulty about being able to return to this country with family that they may have settled down with in another EU country.

To my mind, we should say that they had a legitimate expectation when they left that they would be able to return to this country at the appropriate moment with their EU family members. The problem now arises that if they return after the transition period that the Government have put in place—it is better than nothing; that is absolutely true—they will face the £18,600 threshold, which I previously alluded to.

There are folk over there with huge dilemmas to address. The briefing we have had from British in Europe sets out a very typical example. Sarah is a 48-year-old British national living in Germany with her 52-year-old German husband and children. She is the only child of an elderly mother in the UK. Career and schooling reasons mean that she cannot realistically return to the UK by March 2022. What happens if Sarah’s mother becomes so frail or ill that she needs the care of her daughter in five years’ time? Sarah will have a huge decision to make: either to uproot her family at a hugely disruptive and inconvenient time, to come back to look after her mother, or to leave her family behind and come back to look after her mother. Alternatively, she will just have to hope that her mother is able to cope.

Sarah was not negligent in going abroad without taking this future prospect into account when she made the decision to travel and live in Germany, because it just did not arise. We were part of the EU and free movement was always going to be there.

I am grateful for and welcome the fact that the Government have reviewed the immediate cut-off, but 2022 does not give enough time. Why do we not have an open-ended cut-off for the people from this country who have made their lives in other parts of the European Union or the EEA, and let them return here under the regime that was in place when they left? That is the purpose of amendment 14, and I hope it will have a sympathetic hearing.

[Holly Lynch]

Once again, we are very sympathetic to the amendment. As we have already heard, it is not dissimilar to amendment 1, and it would offer reassurance to the 1.2 million British nationals who live in EU countries. Failure to implement measures such as those proposed in the amendment would show the Government’s indifference to British citizens who decided to make their homes and lives in Europe and, as in the example we have just heard, could force people to choose between loved ones there and loved ones here.

The example provided by British in Europe paints a picture of something that is affecting thousands of people and has the potential to affect thousands more in future, as family members age and their circumstances change. The amendment characterises the significance of forming laws and policies; what is discussed and decided on in this building has far-reaching implications and consequences affecting vast swathes of people in their day-to-day lives.

Until March 2022, any citizen going to live in an EU 27 country did so with the security of knowing that if they were to form a relationship and/or have a family, they would have the right to return to the UK with their partner and family, with no or very few conditions attached. That was the point I made to the Minister in challenging and seeking further clarification on some of his points about differences being potentially discriminatory against returning UK citizens and spouses from other parts of the world, not just EEA countries.

As I am sure we can all appreciate, families and relationships can be complex. The provisions afforded to British citizens through freedom of movement would allow any citizen to return to the UK with their partner and family if a situation arose where they needed to do so, potentially at quite short notice. If the UK citizen returned to be either employed or self-employed, there would be no conditions on their return; if they returned to be a student or to be non-economically active, they would have to have sufficient resources not to become a burden on the social assistance system of the UK, and have comprehensive health insurance.

In comparison, under the proposed new immigration rules, spouses and partners who wish to enter the UK with their British partner will have to meet the minimum income requirement of £18,600, and the figure is increased if the family have children. That is a wholly restrictive requirement that will severely deter families from returning and coming to the UK. In some cases, it may stop British citizens returning to the UK altogether.

As highlighted in evidence by Jeremy Morgan, the right of citizens to return with their families to their country of origin was deemed outside the scope of the UK-EU withdrawal negotiations, resulting in a serious inequality between UK citizens in the EU and EU citizens in the UK. Bizarrely, the UK Government are discriminating against their own citizens in this instance, since nationals continue to enjoy their right to return to their countries of origin with their non-EU family members.

Furthermore, EU citizens resident in the UK and covered by the withdrawal agreement also have an unconditional lifelong right to bring in family members, including non-EU members, to the UK, provided that the relationship existed before the end of the transition period. The amendment tabled would address that discrepancy.

The coronavirus pandemic has only heightened the need for the Government to carry out their basic duty to support UK citizens living abroad. What if the pandemic had occurred after 29 March 2022? As countries began lockdown, British citizens in Europe would have been faced with the unenviable choice of remaining or hastily returning to the UK. The minimum income requirement would have meant that many British citizens and their families would have been simply unable to return, despite both global and personal crises.

--- Later in debate ---

[Stuart C. McDonald]

I am grateful to the Minister for his response. I will have to go and look at the drafting of my amendment. While it may not be technically correct, I absolutely stand by the principle of what it is trying to achieve.

The Minister and the Department have listened to UK nationals living in Europe and the EEA, which is why they put in place the transition period and the cut-off point of March 2022. However, I listen to those very same people, who say to me that that will leave an awful lot of them with a huge dilemma. I just do not understand why the UK Government insist that it has to happen like that. There is no need for a balance to be struck or for any cut-off point.

This is not, as the Minister expressed, a question of people bypassing domestic immigration rules. The aim of the amendment is to help people who moved abroad and formed family relationships in good faith at a time when there was no prospect of their right to return to this country with a family being impeded; they could have done so at that time, on the basis of free movement rules. With your leave, Mr Stringer, I will withdraw the amendment. In the meantime, I will go away and work on it, but I stand by the principle and intention behind it.

I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Stuart C. McDonald]

I beg to move amendment 16, in clause 4, 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 5 March 2020.”.

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.

I feel a little like somebody who has been banging his head against a brick wall, and I am sure other hon. Members feel the same. This is a return to the debate about whether the European Union settlement scheme should be a constitutive or a declaratory scheme. That sounds quite technical, but it is not really. The Government say, “We’ll give you a right to remain, and you can retain your rights, if you apply.” That will inevitably mean a—hopefully small—percentage missing out and losing their rights in this country. Scottish National party Members say we should put it into the Bill that EU and EEA nationals automatically have these rights. Doing so would fulfil a promise made by the Prime Minister, the Home Secretary and, indeed, the Chancellor of the Duchy of Lancaster during the referendum campaign, when they said quite expressly that everybody would retain their right to be in this country, and that there would be no need for any application at all.

Before we go too far into the debate, I want to say that Ministers quite often stand up and tell us about the success, and fairly so, of the settlement scheme so far. Opposition MPs obviously asked questions, such as about why it was not working on the Apple iPhone or whatever else, how the numbers were progressing or why so many people were given pre-settled status. However, I am happy to say, as I have many times before, that it has exceeded my expectations. The Home Office has reached more EU and EEA nationals than I anticipated. It does not have a wonderful record with IT over the last 10, 15 or 20 years, but on this occasion it has done a decent job.

However, the fact remains that—with the best will in the world, even if the Home Office gets to 95% of its target crowd—that still leaves hundreds of thousands of people who will fail to apply in time. I have asked repeatedly what estimate the Home Office has made of how close to 100% it will get, and what the implications of that are, in terms of dealing with the 100,000 folk who will overnight be without rights this time next year. We really need to get to the nub of this.

Other amendments offer alternatives, exploring different cut-off points and different solutions as to how to treat applicants who come to the Home Office after the cut-off date, but we still insist that the much simpler solution would be to say, in this or another Bill, that if someone meets the criteria, they retain their rights, even if they do not apply.

The Home Office seems to suggest that folk will not apply. In fact, during an evidence session on Tuesday, the Minister asked a question on how looked-after children would prove that they had rights. It is simple: they would apply to the EU settlement scheme. We are not saying, “Just ditch all the work that has gone on for the past 18 months to two years.” We are saying, “Keep that work, but make it so that it is not the digital whatever you get that gives you the rights, but that the rights come from the legislation, and you get that document”—if we have our way—“or a digital code to prove your rights.”

Probably the best way to explain this would be with reference to British citizenship, which is the most obvious example I can call to mind of another declaratory system. No one in this room gets their rights as a British citizen from their passport or from any other document; we have our rights to British citizenship declared in law, in the British Nationality Act 1981. It does not cause us difficulties if for the first few years of our lives we do not have proof of that; indeed, if we do not go abroad on holiday, we can actually go through until we are perhaps 14, 15 or even 18 years old without having to access that proof. That is not a problem.

That works perfectly well for British citizenship—it becomes convenient for lots of people, at a certain time, to get a passport or wherever else to prove that they can exercise their rights—and it would be exactly the same with the EU settlement scheme. All these people will want to work or to access social security or housing, if they are subject to the right-to-rent scheme, so they will still have every incentive to apply to the EU settlement scheme. The amendment would just mean that if, for whatever reason, they did not apply, their rights were protected.

[Douglas Ross (Moray) (Con)]

Would the hon. Gentleman consider whether perhaps one reason some people, particularly in Scotland, would not apply for the scheme is because, despite his having praised it today and said it has exceeded his expectations, SNP politicians in Scotland have encouraged people not to apply? I raised this issue when he and I were members of the Home Affairs Committee. The messaging that comes out should be far clearer. Does he accept that, whether or not he agrees with the scheme, the advice not to apply that some SNP politicians are giving is unhelpful?

[Stuart C. McDonald]

I have had that intervention before, and I think I answered it. There is one individual who would be expected to apply to the scheme but at some point in the past—I am not sure what his current position is—he said that as a point of principle he does not want to apply. I have said previously that I do not agree with him, but the hon. Gentleman cannot possibly accuse the Scottish Government or the SNP of not being clear about the messaging—they have invested considerable sums of their own money in outreach and in attempting to get as many folk as possible to sign up to the scheme. For that reason, I do not accept the premise. I disagree with that one colleague, but I absolutely reject the premise that we have been anything other than clear in encouraging people to sign up.

The reasons folk will not sign up are not related to the position of an individual politician. Folk will not sign up because they are vulnerable, as we have spoken about—care leavers; children; elderly people who perhaps were settled and had permanent residence under the old EU scheme; and people who quite simply just do not understand that they have to do it.

There are really complicated questions involved. For example, lots of folk will think, “Well, I was born in the United Kingdom, so I am British,” but in actual fact whether or not they are British depends on a million different things. It depends on the marital status of their parents, depending on when they were born. It depends on their date of birth. It might even depend on when a particular country joined the EU, as that can have an impact on the conferring of nationality. There are millions of different issues.

It is beyond doubt that on 1 July next year we are going to wake up in a United Kingdom that has 100,000 people who do not have the right to be in this country. We have to be constructive and come up with a solution, but we do not yet have enough from the Government on what they want to do. We get told, “We’ll be reasonable,” but that really does not cut. We need to do better than that, which is why we have tabled other amendments to push the Government to be much more explicit about how they are going to treat folk who apply after the deadline, for whatever reason.

The simple point, which is consistent with all the work that has gone before and does not undermine it in any way, is to turn around now and say, “Right, we are doing well, but we are just going to say that everybody has these rights. Continue to apply so that you can go about living your lives without being refused renting or a job or whatever else, but you have these rights.” It is a simple matter and would avoid a tremendous headache that would make Windrush look almost insignificant. That was cataclysmic; this situation risks being considerably worse.

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[Kevin Foster]

This has been a useful debate. As has been pointed out, amendment 16 would require the Government to establish a declaratory system for those eligible for residence rights under the withdrawal agreement or the immigration rules for the EU settlement scheme. That was touched on by the hon. Member for Cumbernauld, Kilsyth and Kirkintilloch East, who speaks for the SNP. It is a familiar argument we have been having over the last couple of years, and I suspect we will continue having it over the next year or two.

As the hon. Member alluded, EEA and Swiss citizens resident in the UK by the end of transition period and their family members can secure their rights here through the EU settlement scheme and through applications that are free of charge to make. So far, more than 3.5 million applications have been received and more than 3.2 million concluded, despite the efforts of one or two people to encourage people not to take part, as my hon. Friend the Member for Moray highlighted. This is with still more than a year to go before the deadline for applications on 30 June 2021 for those resident here by the end of the transition period on 31 December.

It is worth pointing out that the UK’s immigration system has long been predicated on individuals applying to the Home Office to be granted leave to enter or remain, under what we call a constitutive system. The Government have repeatedly made it clear that the constitutive system, introduced through the EU settlement scheme, is the best approach to implementing the citizens’ rights elements of the withdrawal agreements. It provides EEA citizens and their family members with clarity about what they need to apply for and by when, and with the secure evidence of their status that they need.

A requirement to apply for individual status by a deadline provides a clear incentive for EEA citizens living here to secure their status in UK law and obtain evidence of this, whereas a declaratory system, under which individuals acquire an immigration status under an Act of Parliament, would significantly reduce the incentive to obtain and record evidence of status. Indeed, the amendment does not include any requirement to do that, so in decades to come it could result in some of the issues we saw in the Windrush scandal: people with a status that has been granted, but for which there is no clear or recorded evidence.

[Stuart C. McDonald]

I am happy to take on board what the Minister says and redraft the amendment to include, for example, a £50 fine if somebody does not have a document proving their settled status. That would be much less serious than leaving them without any right to be in this country at all. Would he consider a declaratory system on that basis?

[Kevin Foster]

Well, I do not think I would. Like I said, we would be reasonable in accepting late applications—for example, if somebody did not have EU settled status because they were a child in care or mentally incapable at the time when they should have applied. I suspect that when we publish the guidance those two situations will be among the list of reasonable reasons for late applications. It would be rather odd, however, to then issue them with a £50 fine. We think it right that at some point a line be drawn, although we would be reasonable in respect of the circumstances of a late application. Certainly, in the early stages after the deadline, it is likely that the bar to cross will be fairly low, in terms of what is a reasonable reason for not having made the deadline.

As was touched on, we are up to more than 3.5 million applications already. It has been a very successful scheme. It is slightly ironic that the organisation representing EU citizens in the UK calls itself the3million, because the Home Office has already found 3.5 million and there is still a good stream of applications coming in every day, as there has been throughout the recent period. The Government are confident that we have already found many more than 3 million, and all of them are our friends and neighbours. We want them to stay, and we welcome the fact that they have taken the opportunity to apply to the European settlement scheme to guarantee their rights.

The Government are adamant that we must avoid a situation where, years down the line, EEA citizens who have built their lives here find themselves struggling to prove their rights and entitlements in the UK. That is why we have set up this system. I fundamentally believe that changing a system that is working well would have the opposite effect to that which the amendment is intended to achieve. It would reduce the certainty of a grant of status under the EU settlement scheme, which has already been given to more than 3 million EEA citizens and their family members.

The amendment provides that a right of permanent residence would be automatically acquired by EEA citizens resident here before 5 March 2020—when the Bill was introduced—regardless of how long they had been continuously resident in the UK. I do not wish to speculate about why the amendment is designed to exclude people who arrived on 6 March, or about why the Bill being introduced is a more significant moment than the end of the transition period or the day that Britain left the European Union. The general requirement under the EU settlement scheme to have been continuously resident here for five years before becoming eligible for a right of permanent residence—settled status—reflects the rights under the free movement directive, which are protected by the withdrawal agreement. To reassure hon. Members that we are talking to people who work with the EUSS, there will be efforts put in place, using the contact details provided to the EUSS, to prompt people should they be approaching the five-year period.

It is right that someone should demonstrate sufficiently long residence in the UK, in line with our current EU law rights, before being eligible for all the benefits and entitlements that settled status brings, including access to those provided by public funds. The amendment would mean that any length of residence in the UK prior to 5 March 2020, however short, would be sufficient. I do not believe that is the right approach. It is a rather strange date to choose, even though it is the introduction. Why would that be logical? It is worth explaining why someone was not covered on 6 March but was covered on 5 March. I therefore suggest to the Committee that we should not accept the amendment; we should stick with a system that is working and doing a great a job at getting those who are our friends and neighbours the status they need for the long term and the surety that brings. I therefore suggest that the hon. Member for Cumbernauld, Kilsyth and Kirkintilloch East withdraw his amendment.

[Stuart C. McDonald]

Again, I am grateful to the Minister for his reply. The amendment would not negate the good work that has happened in managing to process applications from EU nationals and provide them with digital proof of their status; it would build on it.

The Minister always insists that such a system would give people less of an incentive to apply, but that is just not the case. We would not say to anyone who was a victim of the Windrush fiasco that they did not have an incentive to apply for documentary proof. In fact, all the Windrush citizens had the right to be in this county, but that was not enough. They had to get documents, and the result of not being able to access documents was that they went through absolute hell. That is a lesson that we must learn. If we make the system declaratory, people will still apply because they need digital proof of their status to access work, social security, education and whatever else.

I do not accept the Minister’s explanation of why we retain the constitutive system. If he wants to talk about incentives, there is a big problem for anyone who misses the deadline of 30 June 2021. When they find out that they have missed it, they suddenly think, “I thought I was British, but I am not. I thought I had rights here because I had status under the old EU system, but it turns out I don’t.” Those hundreds of thousands of people will be absolutely petrified of applying to the Home Office because they have no assurance that they will be granted status here. There are vague words about being reasonable, but that did not really cut it for the Windrush generation, and this is a much bigger problem. I will press the amendment to a vote.

Question put, That the amendment be made.

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

Stuart C McDonald Excerpts

Committee stage & Committee Debate: 3rd sitting: House of Commons
Thursday 11th June 2020 Public Bill Committees

[Holly Lynch (Halifax) (Lab)]

It is a pleasure to serve under your chairmanship, Sir Edward, as we start line-by-line scrutiny of this particularly important legislation in these highly unusual times.

I thank the Minister for his opening speech on clause 1 and schedule 1. Early in proceedings, I want to put on the record my thanks to the Clerk of the Bill Committee. He has been absolutely invaluable to all Committee members with assistance on the amendments and new clauses before us.

I also want to put on the record—I am sure that the Minister will join me, in the spirit of some early unity, as might you, Sir Edward—an expression of our disappointment about the audio arrangements for Tuesday’s evidence session. The poor sound quality was problematic not only on the day, as on occasion exchanges between Members and witnesses were seriously restricted, but for Hansard during the afternoon sitting. Colleagues worked incredibly hard to make that Hansard report available, but, unfortunately, it was not published until after 11 o’clock last night. That made preparations for today’s line-by-line scrutiny based on that evidence incredibly difficult.

That said, I turn to clause 1 and schedule 1. As the Minister is aware, we voted against the Bill on Second Reading, and the clause is the Bill in a nutshell. We will go on to discuss in great detail the various clauses and to outline our reservations at the different stages, but, ultimately, we fear that the Bill—right now, and in this form—holds none of the answers to the problems facing the country and actually stands to exacerbate them.

It is not difficult to see how implementation of the Bill could have severe consequences for the health and social care sector, a point made by several of the witnesses on Tuesday. The sector will require special consideration. The policy statement published in February on what comes after clause 1 specifically comes into effect simply saying to those earning less than £25,600:

“We will…end free movement and not implement a route for lower-skilled workers.”

Many of the people on the frontline fighting the coronavirus earn less than that. We need them now, and we need them to recover. The policy paper and the Minister state that they are looking to the domestic workforce to plug those gaps, but on Tuesday we heard from the Migration Advisory Committee—we can all see and feel this—that systemic failures underpin the problems in social care, and those will not be resolved by January. If we put a hard stop on free movement without having resolved some of those issues, there will be consequences when the country can least afford that.

Concerns about the clause fall into two distinct groups: ensuring that we have done the right thing by the some 3.5 million EU citizens who are already here under free movement rules when those come to an end, and certain groups in particular, and looking ahead to the future impact of restricted migration flows. Since the Bill’s predecessor was presented to the House in the 2017 to 2019 Parliament, the EU settlement scheme has come into effect to give European citizens who reside in the UK a pre-settled and a settled status.

The numbers coming through the scheme are positive, but there are concerns about certain groups, some with specific vulnerabilities. Eligible children in care, for example, are one cohort that we will return to under the new clauses. The impact of coronavirus on Home Office capabilities alone, in addition to its impact on applicants, inevitably has heightened our concerns that some groups will need more support than ever to access the scheme.

Turning to the impact that ending free movement will have on migration flows in key sectors, the Bill provides more questions than answers. It is incredibly narrow in scope, as we have discussed, which is extraordinary given that it will create the biggest change to our immigration system in decades. Instead of putting forward a new immigration system, which Parliament could discuss, debate, amend and improve, the Bill grants powers to Ministers to introduce whatever system they like with extensive Henry VIII powers.

The Government’s February 2020 policy statement indicated what such a system might be like. Properly debating most of that new system will be deemed out of scope for this Bill and this Committee, but we will do what we can within scope to set out principles and solutions for when clause 1 comes into effect.

A number of the witnesses on Tuesday were critical of the Government’s planned £25,600 threshold—not just on health and social care—and transitioning on to a visa system and sponsorship routes will cause headaches and shortages for a range of businesses, exacerbating economic uncertainty. For example, the Bill fails to address the UK’s need for migrant workers to allow the agriculture sector simply to function, which is another issue that we will explore when we debate the new clauses.

To be clear, Labour has no problem with an immigration system that treats all migrants the same, no matter where they come from, but that is not the system the Government propose. A points-based immigration system could be effective. However, it would be predicated on receptive analysis of occupation shortages, parallel education and skills strategies that seek to fill long-term job gaps with domestic talent, and a pragmatic yet empathetic Border Force. The Bill fails to do any of that, and we will seek to remedy this, within the bounds of its scope, through our amendments and new clauses.

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

It is a pleasure to serve under your chairmanship, Sir Edward, albeit at a longer distance than we are accustomed to. I thank the Clerks for dealing with what were probably some horrendously drafted amendments by the bucketful during the last couple of weeks.

I am pleased to have the opportunity to take part in our detailed line-by-line scrutiny of the Bill. It will be with a sense of déjà vu that I am sure the hon. Member for Stretford and Urmston also feels, having sat in the same Public Bill Committee this time last year. The real shame is that, this time last year, nobody listened to a thing that we said, and this Bill is in the same form as it was back then. Looking around the room, however, I see a much more discerning Committee this year, so I am filled with optimism that we may indeed be able to deliver some change.

We have serious concerns; we do not just make things up. As Opposition MPs, we have lots of concerns that stakeholders have raised with us. My preliminary point is that the two previous Immigration Acts that passed all the way through Parliament, in 2014 and 2016, contributed in a very serious and significant way to the Windrush scandal. In her review of what happened, Wendy Williams highlighted all the warnings that came from the same stakeholders about the problems that those Bills would cause. Indeed, she quoted from some of the contributions made by Opposition Members during the passage of the Bills. Hon. Members might not agree with everything we say, but sometimes we are worth listening to, even if we do not manage to achieve change in this Committee. I plead with the Home Office and members of the Committee to engage seriously with the concerns that we are flagging up.

At the weekend, the former Home Secretary, the right hon. Member for Bromsgrove (Sajid Javid), wrote that

“the Home Office has yet to implement the process of root and branch cultural change necessary in the aftermath of Windrush.”

I hope that, during the passage of the Bill, we receive some signals that the cultural approach of the Home Office, and its attitude to listening, is changing.

Clause 1 is the Bill in microcosm. I will not repeat my entire stage 2 speech, which I am sure hon. Members followed very closely indeed, but I take your advice on scope, Sir Edward. I am sad to say again that the SNP totally opposes clause 1, because it brings to an end what we regard as a valuable, simple and well-functioning immigration system of free movement. As a result, it extends what is a complex, expensive and unjust domestic system to EEA nationals. That is bad for the individuals caught up in it, who will face prohibitive fees, complicated procedures, broken families and diminished rights, but it is also bad for the economy. I do not think that any hon. Member present who paid attention to the evidence that we heard on Tuesday can remain 100% enthusiastic about the Government’s proposals for the immigration system come January. It will be an abject nightmare for many industries that have already been totally decimated by the coronavirus shutdown. We did not even hear from the tourism and hospitality industries, which are at the forefront of facing the challenges.

Clause 1 is also bad for Scotland—for our population growth, demographics, economy and tax base. If the task had been to design an immigration system for Scotland alone, nobody in their right mind would have come up with this one. The same is true—probably even truer—of Northern Ireland, with its land border with a country where free movement will continue. We will explore all these issues as we go through the Bill in more detail and discuss the amendments and new clauses that have been tabled. From my point of view, there is nothing much to celebrate and lots to regret about clause 1, and indeed schedule 1, and we oppose them both.

--- Later in debate ---

Repeal of the main retained EU law relating to free movement etc.

[Stuart C. McDonald]

I beg to move amendment 18, in schedule 1, page 7, line 26, leave out paragraph 4(2).

I am moving this amendment because, as we heard on Tuesday from Adrian Berry, the drafting of paragraph 4(2) —there are similar paragraphs in schedule 1—is far from satisfactory.

In tabling this amendment, we are asking the Minister, how is it that this paragraph is supposed to work? Why must we leave it to ordinary citizens to work out whether they still have certain rights by checking back whether these provisions are inconsistent with or could impact on the interpretation of decades of immigration laws, both Immigration Acts and legislation made under them? Why has the Bill not done that job for them? As Mr Berry said, the Home Office must know how these rights interplay with earlier provisions of immigration legislation. Why is that not set out in the Bill?

As we just heard, schedule 1 does the heavy lifting of repealing large parts of retained law in relation to free movement of people. Over three parts, schedule 1 lists, in considerable detail, the various bits of primary and secondary legislation of retained EU law that are to be omitted and revoked.

For large parts, the schedule is pretty clear. For example, it says:

“Article 1 of the Workers Regulation is omitted.”

I do not like that, but I cannot complain that it is lacking in clarity. As Adrian Berry pointed out, however, elsewhere the drafting lets people down. Even with the help of immigration lawyers like Mr Berry, it will be incredibly difficult for people to know whether other rights that they have under the workers regulation are still effectively in force.

Other articles in the workers regulation are important. These are not trivial matters. They include, for example, the right to equal treatment in various spheres, such as education, employment rights and family rights. It will be important for folk to know, in a straightforward manner, whether they still enjoy these rights, but schedule 1 totally fudges this question.

The offending paragraph states that these provisions

“cease to apply so far as—

(a) they are inconsistent with any provision made by or under the Immigration Acts (including, and as amended by, this Act), or

(b) they are otherwise capable of affecting the interpretation, application or operation of any such provision.”

I find that very difficult to understand, as a parliamentarian and somebody who many years ago was an immigration lawyer.

For example, is a protection offered against discrimination on vocational grounds in paragraph 6, contrary to the Immigration Acts or any provision made under them? The Immigration Acts are a specific list of provisions. Again, as Mr Berry pointed out, it would not be unreasonable to think that the Home Office knew exactly which workers regulation articles were not impacted at all and which were, and to what extent.

That should be in the Bill, so that folk know where they stand. It is as simple as that. Otherwise, the consequence would be endless confusion and litigation. The query and question for the Minister is, why is the Bill still drafted in this way?

--- Later in debate ---

[Kevin Foster]

Thank you, Sir Edward. I just thought I would be courteous, in case there was another hon. Member who wished to speak.

Amendment 18, which stands in the name of the hon. Member for Cumbernauld, Kilsyth and Kirkintilloch East, and his colleagues, would remove paragraph 4(2) from schedule 1 to the Bill, which disapplies provisions of the workers regulation, which conflict with domestic immigration law. This would mean that the UK remained bound by EU law in relation to the rights of EEA citizens to access the UK’s job market, which might in part be the hon. Gentleman’s intention, given his well-known view on that subject.

The Government, therefore, cannot support this amendment, because it would effectively result in free movement rights for workers and their families continuing after the end of the transition period. The Government are committed to ending the free movement of people now that we have left the EU, so therefore this proposal is incompatible with that. The Government are committed to ending the free movement of people now that we have left the EU, so therefore this would be incompatible with that.

We have made it clear that we will bring free movement to an end on 1 January, and introduce an effective and fairer points-based immigration system that takes into account the needs of the whole of our United Kingdom and works for the whole of our United Kingdom. It will be a system that reflects the skills and contributions that someone has to offer, not where the person comes from.

[Stuart C. McDonald]

The Minister is right that I would love to see all these rights retained, but that is not the motivation behind this amendment. I accept that the Government want to go about repealing some rights, but the Bill does not really do that. It says, in a peculiar way, that the rights are “sort of repealed” and one has to check back through immigration legislation for decades to work out to what extent. Why has it been done in this way rather than setting out specifically which rights are retained and which are not?

[Kevin Foster]

The answer is partly that it is not possible to draw up an exhaustive list of directly affected law in terms of the EU because court judgments will affect that. One reason for the wording is to make it clear that it relates to the Immigration Act 1971 and does not create a wider enabling power around the workers regulation. I am also clear that those who are subject to the withdrawal agreement are covered by those provisions.

During the passage of the European Union (Withdrawal Agreement) Act 2020 we discussed in great detail the provisions for protecting the rights of EEA citizens resident in the UK by the end of the transition period, which is 31 December this year. The EU settlement scheme, which was fully opened on 13 March 2019, was specifically introduced for this purpose. One of the rights protected by the status granted under the scheme is equality of access to employment, benefits and services, in the manner outlined by the workers regulation.

Retaining sub-paragraph (4)(2) of schedule 1 will in no way compromise our commitments to upholding the rights of resident EEA citizens already working in the United Kingdom. It will simply ensure other provisions of the workers regulation, which are not specific to immigration, do not have ongoing effects on UK immigration law, but continue to have their effects for other purposes, hence the wording of the sub-section. Otherwise the UK would be required, for example, to provide all EEA citizens with an offer of employment as though they were British citizens, meaning they could not be subjected to any restrictions on access in the UK labour market, directly undermining the new points-based immigration system, which will not provide preferential treatment for EEA citizens.

The changes made by sub-paragraph (4)(2) only relate to immigration aspects of the workers regulation and will not affect any other rights provided by that regulation. For example, the right to equal treatment in respect of positions of employment and work, and the right to join a trade union are unaffected by the provision, because this Bill is not the appropriate vehicle in which to consider them or to look for a power to alter or amend them.

It is less than six months since the British people voted to take back control of our borders and introduce a new points-based system to control immigration, which will deliver for the UK for years to come. This provision, ending the immigration rights provided by the workers regulation, is one the steps needed to pave the way for the new system. For those reasons, the Government cannot support this amendment and I ask the hon. Gentleman to withdraw it.

[Stuart C. McDonald]

I thank the Minister for his explanation. I absolutely understand what the Government are trying to achieve and that some of the rights in the workers directive have been put in legislation, including in the European Union (Withdrawal Agreement) Act 2020. However, that is not the point that this amendment is trying to make. The point is about how the Bill is—or is not—going about repealing the workers directive.

It is essentially a point about the rule of law. When I intervened, the Minister said that it would not be possible to draw up an exhaustive list of exactly how these rights were affected by Immigration Acts and other provisions. If the Government cannot do that, how on earth is the ordinary citizen supposed to be able to tell what their rights are? I think we should take this paragraph out of the schedule and, if the Government are unhappy with the implications that has in leaving things on the statute book, they should come back on another occasion with a clear list and fix it that way. I would like to push the amendment to a division.

Question put, That the amendment be made.

--- Later in debate ---

[Holly Lynch]

I am grateful to the Minister for a lot of the clarification in his opening remarks. We welcome clause 2, and its content is indeed necessary. We will, however, be asking for some further assurances through new clause 27, largely to reaffirm what the Minister has just said. That new clause asks the Secretary of State to

“publish a report detailing the associated rights of the Common Travel Area”.

We heard from both Alison Harvey and Professor Ryan that although clause 2 is welcome and offers a degree of clarity as free movement rights are stripped away from both Irish and British citizens, as well as those in Northern Ireland who identify as both, there are some outstanding areas that require further clarification, including the scope of reciprocal rights under the common travel agreement. Clause 2 shows that many of the rights granted to Irish citizens through the common travel area are facilitated through freedom of movement. If not in the present Bill, do the Government plan to legislate to enshrine the provisions of the common travel area as reciprocal rights, rather than purely as changeable administrative arrangements, and, if so, when?

As Professor Ryan highlighted on Tuesday, more must be done to clarify the status of acquisition of British nationality, for British-born children, children born to Irish parents and Irish citizens wanting to naturalise. At the moment it is incredibly hard to ascertain the exact immigration status of those individuals and to know, for example, whether they have time limits on their visas or have ever breached immigration laws. If the Government truly want to redefine the British immigration system, they must answer those questions to clear up the ambiguity surrounding British citizenship law.

I am sure that the Minister will understand some of the nervousness about deportations. He referred to it in his opening remarks on the clause. To give the Committee some context to work with, I asked Professor Ryan at column 35 in the evidence sitting on 9 June whether he was aware of examples in recent history when an Irish citizen had been deported, either because a court had recommended deportation on sentencing, or because a Secretary of State had concluded, owing to the exceptional circumstances of the case, that the public interest required deportation. If I am not mistaken, the Scottish National party spokesperson also put a similar question to Alison Harvey. No specific examples could be provided. If the Minister is aware of any, I should welcome it if he would share them with the Committee to support the discussion.

We still do not know the Government’s proposed threshold for deportation of Irish citizens. It would be helpful if that could be clarified. Ideally, the Government would enshrine that in legislation or at least make a commitment during the passage of the Bill to state explicitly how deportation and exclusion will be used for Irish citizens in future. Professor Ryan has said that owing to the arrangements in the common travel area the threshold for deportation and exclusion of Irish citizens is notionally higher than that of other nations. Seemingly, it is more rarely, if ever, exercised.

As I have mentioned, the Good Friday agreement allows people born in Northern Ireland the right to identify exclusively as Irish or British, or as both. Irish citizens are referred to in the Bill, so can we assume that that reference includes Northern Ireland-born citizens who do not identify as British? If so, will the Minister make it clear in the Bill that people in Northern Ireland who identify exclusively as Irish, per the Good Friday agreement, are exempt from deportation and exclusion?

Without such a commitment, there is inevitably some anxiety. Alison Harvey made a case for mitigating the risk through the right to abode. If that were implemented, it would guarantee a raft of citizenship rights, so I welcome feedback from the Minister on that approach. As well as clarifying the status of Northern Irish citizens who identify solely as Irish, the right to abode would also alleviate the loophole through which someone with an Irish passport is not granted protections on arriving in the UK, because they have travelled from a country outside the common travel area.

We are supportive of the clause and will not oppose it, but will return to some of its content in debate on new clause 27.

[Stuart C. McDonald]

Given what the Minister and shadow Minister have said, I can, I hope, be helpfully brief. I am grateful to the Minister for clarifying the position on deportation, but the shadow Minister raises a reasonable point. The Minister has clarified the policy— but why not put it on the face of the Bill? I very much welcome the Minister’s confirmation of how Irish nationals will be able to come from outside the CTA with family members. It is a welcome clarification.

I want briefly to refer to the broader issue of common travel area rights. We are often told about the historic common travel area, and the fact that the rights go back many decades. That is true, but in recent years most of those rights have become embedded in and entangled with free movement rights. In the Bill, we are repealing those rights but not replacing them with common travel area rights. The Government keep talking about reciprocal rights, but we need them to be set down in statute.

So far, as the Minister said, there seems to be a non-binding memorandum of understanding with the Government of Ireland, and a Government position paper, setting out the fact that there will be rights to work, study, social security and healthcare access, and vote. For the Irish Human Rights and Equality Commission, essentially those CTA rights are “written in sand” and for the Committee on the Administration of Justice the CTA can be characterised by loose administrative arrangements of provisions that can be altered at any time. So we need to return to this issue of when we will actually see a detailed scheme of rights for the common travel area.

There is some urgency about this matter, because at the moment, for example, there are people in Northern Ireland who choose to be Irish citizens and who have the option of applying under the EU settled status scheme, but they will have to make that decision without really knowing how the benefits of the EU settled status scheme compare with the benefits of the common travel area scheme, because that has not been spelled out in great detail yet. There are practical issues that have been flagged up by the organisations I have mentioned about cross-border rights to access healthcare and education, and so on. All these questions need to be answered, and fairly urgently.

Finally, I will echo what the shadow Minister said about Alison Harvey’s evidence on the right of abode, and I would be interested to know whether the Government are considering achieving some sort of resolution of these issues by using the right of abode. However, we will return to these issues when we debate the new clause that the shadow Minister has tabled.

I welcome clause 2, but we still have a considerable way to go in making sure that the common travel area persists and works properly, and that folk know where they stand.

[Kevin Foster]

I thank the SNP and Labour spokespersons for their overall support of the clause. I think I have been clear that there is a very strong commitment to the common travel area. Elements of its operation are inevitably required due to the provisions of the Belfast agreement, which is actually international law; it is a treaty between the United Kingdom and the Republic of Ireland, so it is not something that can just be amended on a whim. Far from it—it is underpinned by the strong consent of both communities, north and south, as expressed in referendums at the time it went through.

The commitment of both Governments to the common travel area has persisted for decades and will continue to do so. Irish citizens can apply to the European settlement scheme. I do not see any detriment that would come to them from doing so, but neither is there a requirement for them to do so, given the clarity that the clause brings to their rights within the United Kingdom. To be absolutely clear, the clause looks to remove that difference in the technical definition between an Irish citizen who has arrived in the United Kingdom on, for the sake of argument, the Eurostar from France, as opposed to arriving in the United Kingdom on a plane from Dublin.

It is probably worth saying that it would be interesting to work out how that definition could have actually affected someone’s life, apart from some of their more theoretical rights. However, I will be clear on that front that the Bill removes that difference. For an Irish citizen within the United Kingdom, it applies regardless of which country they travel from—whether they have travelled to the United Kingdom from within the common travel area or, for example, from the United States of America—[Interruption.] I am glad that the hon. Member for Halifax was reassured by that.

Effectively, Irish citizens become identified —I accept that this is perhaps a slightly controversial thing to say in the context of people’s identity—as British in our system of migration. Effectively, their Irish passport becomes equivalent to a UK national’s passport.

As for the provisions around deportation, I was asked whether there was a particular example. My officials in the Home Office have spent some time over the last week or two trying to find an example under current legislation —not under legislation, perhaps, from previous eras—of someone being deported from the United Kingdom to the Republic. We struggled; so far, I cannot find a specific example. I do not see any Member of the Committee who is about to jump up and give me an example, in order to contradict me on that point.

In particular, we are not aware of there ever having been, even at the heights of the troubles, a particular stream of deportation from Northern Ireland into the Republic. Partly, that is because we would all have to question the practical effect of deporting someone from County Londonderry to County Donegal; how on earth would anyone effectively enforce that in any way? Also, however, the spirit between the two Governments has been very much that we respect the rights of those who are there and, to be clear, that is set out in a 2007 written ministerial statement. That was not done under a Government formed by my party. The written ministerial statement has been there for 13 years. I wrote to the Irish Government about the fact that the provisions were in the Bill, and we have not received negative representations. The minimum threshold would have to be an offence that carried a 10-year prison sentence, so we are talking about very serious criminal offending, or the court would have to recommend it.

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[Holly Lynch]

There is so little in clause 3 that we will not make a contribution to it.

Question put and agreed to.

Clause 3 accordingly ordered to stand part of the Bill.

Clause 4

Consequential etc. provision

[Stuart C. McDonald]

I beg to move amendment 2, in clause 4, page 2, line 34, leave out “appropriate” and insert “necessary”

This amendment would ensure that the Secretary of State may only make regulations which are necessary rather than those which the Minister considers appropriate.

[The Chair]

With this it will be convenient to discuss the following:

Amendment 3, 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 20, in clause 4, page 2, line 35, leave out “this Part” and insert “Schedule 1”

This amendment seeks to limit the scope of the power in Clause 4 to matters concerning the ending of retained EU law rights that currently preserve free movement and immigration-related rights.

Amendment 21, in clause 4, page 2, line 35, at end insert—

‘(1A) The power to make regulations under subsection (1) may only be exercised within the period of one year from the day on which this Act is passed.

(1B) Regulations made under subsection (1) shall cease to have effect after a period of two years from the day on which this Act is passed.”

This amendment would restrict the use of the Henry VIII powers contained in Clause 4 to a period of one year from the date of the Act being passed; and would prevent any changes to primary legislation made by exercise of these powers having permanent effect unless confirmed by primary legislation.

Amendment 4, in clause 4, page 3, line 6, leave out subsection (5).

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 15, in clause 4, page 3, line 8, at end insert—

‘(5A) The Secretary of State may make regulations under subsection (1) only if satisfied that the regulations would have no detrimental effect on the children of EEA and Swiss nationals resident in the United Kingdom.

(5B) Before making regulations under subsection (1) the Secretary of State must lay before Parliament, and publish, a statement explaining why the Secretary of State is satisfied as mentioned in subsection (5A).”

Amendment 22, in clause 4, page 3, line 8, at end insert—

‘(5A) Regulations under subsection (1), in relation to persons to whom the regulations apply under this Act, shall be made in accordance with the following principles—

(a) Promotion of family life, particularly that between children and their parents and that between partners;

(b) That persons in the United Kingdom should have a right of appeal to the First-tier Tribunal against any decision to refuse leave remain, to curtail leave to enter or remain or to make a deportation order;

(c) that where leave to remain is given—

(i) on account of a person’s long residence in the United Kingdom; or

(ii) to a person whose continuous residence in the United Kingdom includes five years of that person’s childhood; or

(iii) to a child who has lived in the United Kingdom for a period of seven continuous years;

that leave is given for an indefinite period;

(d) that leave to enter or remain given to a person for the purpose of establishing or continuing family life in the United Kingdom is not subject to a condition restricting work, occupation or recourse to public funds; and

(e) ensure that no change to immigration rules or fees is made—

(i) unless sufficient public notice has been given of that change to ensure any person affected by the change who is already in the United Kingdom with leave to enter or remain has reasonable opportunity to adjust their expectations or circumstances before the change takes effect; or

(ii) that would require a person given leave to enter or remain for the purpose of establishing or continuing family life in the United Kingdom to satisfy more restrictive conditions for the continuation of their stay than were required to do so at the time the person was first given leave for this purpose.”

This amendment seeks to ensure that exercise of the delegated powers in clause 4(1) is guided by certain principles.

Amendment 12, in clause 8, 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.”

[Stuart C. McDonald]

I am pleased to speak in support of the amendments. At this stage I expect to get the Government Members excited because I am urging them to take back control, by which I mean take back control of immigration policy from the Home Office and keep MPs in a job. Like most hon. Members I have become familiar with the broad powers of delegated legislation and sweeping Henry VIII powers in recent years through both immigration legislation and more recently through Brexit. The Government are taking increasingly more and more powers to rewrite not only subordinate legislation but primary Acts of Parliament with very little constraint. I do not think that anyone here would dispute that in certain circumstances such powers can be sensible and useful, but they should be exceptional and limited. Instead, the practice has become so routine that if it goes on we might as well shut down Parliament or end its role as a legislator.

I am grateful to the witnesses who spoke on Tuesday and to the organisations that provided briefings, including the Law Society of Scotland, Amnesty International, the Immigration Law Practitioners’ Association, Justice, Liberty, the Equality and Human Rights Commission and others. There are big concerns about this clause.

In tabling the amendments I have also relied on the report of the House of Lords Delegated Powers and Regulatory Reform Committee and its 46th report in the last Session, which was an analysis of the predecessor Bill. It is fair to say that their lordships were not impressed with clause 4. It is noticeable that they went out of their way to prepare the report in advance of Committee stage so that we could benefit from their advice. I regret that the Home Office is still not listening to that sage advice at all.

The sweeping power is set out first in clause 4(1), where the Home Secretary can make any provision that she thinks “appropriate” in relation to the whole of part 1 —in other words, related to free movement. Clause 4(2) makes it clear that this can include amending any Act of Parliament as well as retained EU legislation. There are various subsections about the procedures that would be required to be used when exercising those powers, which is something that I suspect we will return to later.

The word that appears several times in the House of Lords report is “significant”. Their lordships had significant concerns about significant delegation of powers from Parliament to the Executive on such a significant issue that concerns a significant number of people. Amendments 2, 3, 20, 21 and 4 are designed to cut those powers done to size and to keep MPs in a job. It is quite informative to look at the explanatory memorandum to the same Bill from this time last year. The memorandum explains, for example, how the powers would be used to set up appeal rights for EEA nationals. All those things have already been taken care of in the year that has passed, yet nothing has changed in the formulation of clause 4. The Government still say they need such powers, even though they have done everything that they envisaged using those powers for in the explanatory memorandum from this time last year.

The European Union (Withdrawal Agreement) Act 2020 was passed at the start of the year, and it contains a whole part on citizens’ rights of residence, frontier workers, deportation appeals, non-discrimination and so on. It includes extensive powers of delegated legislation as well, but at least they are constrained by the requirement that they should be exercised in order to implement the provisions of the withdrawal agreement that relate to citizens’ rights. As I say, a lot of what the Government originally envisaged they would use these powers for has already been accomplished.

Amendment 2 refers to an argument that we have had many times before. It is about requiring use of the powers to be “necessary” rather than merely considered appropriate by the Minister. Again, there is no genuine objection to being able to make rules if we suddenly have to make changes for a deal or a no-deal situation in the future relationship, but that should not just be at the whim of Ministers deciding what is appropriate and what is not. Their lordships and various stakeholders have recommended a test of necessity, and that is what is in amendment 2.

Amendment 3 is probably the most critical amendment and takes out the words “in connection with”. I refer again to the House of Lords Committee report, which said:

“We are frankly disturbed that the Government should consider it appropriate to include the words ‘in connection with’. This would confer permanent powers on Ministers to make whatever legislation they considered appropriate, provided there was at least some connection with Part 1, however tenuous; and to do so by negative procedure regulations”.

So their lordships are not very happy at all with what the Government propose.

Amendments 20 and 21 come from the House of Lords Committee report, but there have been perfectly sensible suggestions from Amnesty International, with similar ideas from other stakeholders. Amendment 20 would limit the scope of powers so that regulations cannot be made in relation to any old provision in part 1; they must relate specifically to schedule 1. Again, I emphasise that it can be acceptable to have limited powers in order to tidy up the statute book and the detailed list of provisions in the schedule. As matters stand, however, clause 2 means that we could have sweeping changes made to the rights of Irish citizens on the whim of the Secretary of State. Indeed, on the face of it, delegated powers could be used to alter clause 4 in order to increase the Executive’s powers yet further. That cannot be acceptable.

Amendment 21 would put a simple sunset clause of one year on the use of these powers. Should the Government have not tidied up the statute book by this time next year, something seriously wrong will have happened. Alternatively, something seriously positive will have happened and we will have extended the transition period by a couple of years. In either case, there will be plenty of time to legislate afresh. Everyone gets the argument that sweeping powers should not be left on the statute book forever; hence the sunset clause.

Amendment 22 puts a sunset clause on changes made by subordinate legislation. If the Minister really thinks there is such a rush that he cannot proceed by primary legislation, he should make the regulations. He should then come back to the House of Commons with a proper Bill, so that we can do our job as legislators and decide whether to keep those provisions in force or let them lapse.

In some ways, I am just sticking up for MPs. I want us to be able to continue to be the primary legislators in the field of immigration law and that we should start taking back some control from the Home Office.

[Holly Lynch]

I rise to speak to amendment 12, as well as demonstrate support for amendments 2 to 4, which also have our full support. With your permission, Sir Edward, I will focus my comments on the amendments relating to the transfer of powers in clause 4, and my hon. Friend the Member for Stretford and Urmston will speak specifically to amendment 15, which is part of this group but is on a slightly different issue and relates to the impact that this legislation will have on children.

It is a pleasure to follow the SNP spokesperson, the hon. Member for Cumbernauld, Kilsyth and Kirkintilloch East, who made an articulate speech on the concerns about the Henry VIII powers. The reason we are all here physically today and not fulfilling our duties from home is this Government’s commitment to parliamentary scrutiny. Unfortunately, this transfer of powers seems to be inconsistent with that approach.

The arguments were incredibly well rehearsed on Second Reading during the previous Parliament, in Committee and in the House of Lords Delegated Powers and Regulatory Reform Committee, as we have already heard. That is why it is so disappointing that the Government have not reflected on that feedback and adapted their approach.

Clause 4 as it stands confers an extremely wide power on the Home Secretary to make whatever legal amendments they consider appropriate in consequence of, or in connection with, any provision of the immigration part of the Bill. That includes the ability to amend primary legislation. I am sympathetic to the Government’s stated intention behind the clause—namely, that it will ensure coherence across the statute book following the substantial changes brought about by the ending of free movement, and deliver the required tweaks to legislation. However, clause 4 is drafted so widely that it could relate to almost any aspect of immigration law, and given that there is no time restriction on the clause or the powers within it, the concern is that there is potential for those powers to be used far beyond the aims of this Bill.

Adrian Berry of the Immigration Law Practitioners’ Association, whom we heard from earlier this week, commented on the powers referenced in the Bill, including in clause 4(5). During that evidence session, he said:

“How is the ordinary person, never mind the legislator, to know whether the law is good or not…if you draft like that? You need to make better laws. Make it certain, and put on the face of the Bill those things that you think are going to be disapplied because they are inconsistent with immigration provisions. There must be a…list in the Home Office of these provisions and it would be better if they are expressed in the schedule to the Bill.”––[Official Report, Immigration and Social Security Co-ordination (EU Withdrawal) Public Bill Committee, 9 June 2020; c. 52, Q106.]

He went on to confirm that any responsible Opposition would have to table the amendments in this group in the absence of that list.

As we have heard, amendment 2 would replace the word “appropriate” with “necessary” in clause 4, line 34 on page 2 of the Bill, and amendment 3 would leave out “, or in connection with,” on the same line. With amendment 4, we seek to leave out subsection (5) altogether. We are also supportive of amendment 20.

On the specific proposed changes, as has already been said, the Lords Delegated Powers and Regulatory Reform Committee considered the almost identical version of the Bill in the 2017-19 Parliament. It said:

“We are frankly disturbed that the Government should consider it appropriate to include the words ‘in connection with’. This would confer permanent powers on Ministers to make whatever legislation they considered appropriate, provided there was at least some connection with Part 1, however tenuous; and to do so by negative procedure regulations”.

The Committee expressed significant concerns about subsection (5), recommending that it be removed altogether, which is exactly what we are seeking to do,

“unless the Government can provide a proper and explicit justification for its inclusion and explain how they intend to use the power.”

The reason is that

“it confers broad discretion on Ministers to levy fees or charges on any person seeking leave to enter or remain in the UK who, pre-exit, would have had free movement rights under EU law.”

I argued on Second Reading that this approach is bad not just for parliamentary democracy, but for our public services and for the economy—a sentiment shared by the London Chamber of Commerce and Industry in an evidence session this week. Parliamentary scrutiny is the most effective way for stakeholders to work with MPs to shape legislation to respond to the needs of the country, and they are being denied that opportunity with the transfer of powers in this clause. The Immigration Law Practitioners’ Association, the British Medical Association, London First, Universities UK, the National Union of Students, trade unions and the Children’s Society are just a sample of the cross-section of organisations that have all expressed concerns that this transfer of powers to the Executive is not the way to develop quality and robust legislation.

During the attempted passage of the Bill in the last Parliament, the then Minister, the right hon. Member for Romsey and Southampton North (Caroline Nokes), set out a number of reasons why the powers in clause 4 were necessary. As the SNP spokesperson has already said, a number of those reasons have since been addressed, yet the powers remain.

Since then, almost all those powers have been rendered irrelevant by the passage of other pieces of primary and secondary legislation. I will rebut just a couple of arguments. The then Minister said:

“In the unlikely event that we leave the EU without a deal, the power will enable us to make provision for EEA nationals who arrive after exit day but before the future border and immigration system is rolled out”.

There is now a deal on citizens’ rights in place, so they will not be affected by negotiations on the future relationship.

The then Minister also said that the clause would allow the Government to

“align the positions of EU nationals and non-EU nationals in relation to the deportation regime”.—[Official Report, Immigration and Social Security Co-ordination (EU Withdrawal) Public Bill Committee, 26 February 2019; c. 183-84.]

However, regulation 17 of the Immigration, Nationality and Asylum (EU Exit) Regulations 2019 makes amendments to deportation thresholds, so it is unclear why any further transfer of power is necessary in the Bill.

--- Later in debate ---

[Kate Green]

Amendment 15, tabled in my name and those of my hon. Friends, aims to place the welfare of children at the heart of the way in which Ministers exercise their powers under clause 4. Children’s wellbeing is of central importance, both in UK law and to comply with our international obligations. We are a signatory to the UN convention on the rights of the child and to the global compact on migration, which contains 38 paragraphs on the welfare and treatment of children.

Domestically, the Children Act 1989 sets out the principle of the paramountcy of the welfare of children in matters relating to their care. Section 55 of the Borders, Citizenship and Immigration Act 2009 provides that immigration functions must be discharged with regard to the need to safeguard and promote the welfare of children who are in the United Kingdom. With all that in place, the Committee may feel that we already have a framework that adequately protects children’s interests in immigration matters. However, the powers conferred on Ministers by clause 4 are very broad, and the way in which they are exercised could have a significant impact on children, whose best interests could be overlooked.

My amendment would embed protection against that happening as freedom of movement is ended. It would ensure that policies and rules introduced under the provisions of clause 4 can have no detrimental effect on the children of EEA and Swiss nationals who are resident in the United Kingdom, and would require the Secretary of State to publish and lay before Parliament a statement to explain why he or she is satisfied that that is the case.

The loss of free movement rights in the Bill means that some EEA national children will inevitably fall within the ambit of immigration legislation in the future. Some will be new arrivals to the UK, and others will have been here already but failed to secure the status to which they are entitled, becoming undocumented and subject to the compliant environment as a consequence.

Let me say a word briefly about the children who are at risk of being detrimentally affected, starting with those already in the UK who may none the less have failed to secure status. The number of such children could be substantial. The Refugee and Migrant Children’s Consortium estimates that there were as many as 751,000 non-Irish EEA and Swiss national children in the UK in 2019, but only 415,140 grants of status were made to children under the EU settlement scheme as at the end of March this year. Some of those children will be very vulnerable. My hon. Friends and I tabled new clause 58, which would secure status for looked-after children and young people leaving care, and I hope the Committee will have the opportunity to debate it in the days to come.

The impact of the Bill’s provision on those eligible for status who fail to apply is not limited to looked-after children alone. For example, parents may not understand whether their UK-born children are automatically British, whether they need to apply to register as British, or whether they should apply to the EU settlement scheme. The complexity of the system and the lack of access to advice means that some children may miss out on getting status or fail to obtain the highest status to which they are entitled. Some may be granted only pre-settled status and will need to be reminded to apply for settled status after five years or risk losing their right to remain in the UK.

Another group of children about whom I am concerned is those who have been in custody. Like adults, children applying to the EU settlement scheme are affected by time spent in custody. As well as not counting towards the five-year qualification period for settled status, periods in custody also reset the clock. Any child who spends time in custody will have to recommence their journey to qualify for settled or pre-settled status upon their release. That represents a troubling anomaly in the treatment of children who offend. Our criminal justice system generally takes the view that juvenile criminal behaviour should be treated differently from adult criminal behaviour, but that is not the case in relation to the EU settlement scheme. Is the Minister able to say how many children have been or may be unable to secure settled status as a result of that provision?

The examples I have cited are just that: examples. Any EEA and Swiss national children who do not secure status—those who were born here and those arriving in the future—could be affected by rules that may be introduced under the powers in clause 4. Hon. Members have already identified a number of potential harmful effects on EEA nationals, including children, as a result of the abolition of free movement and the imposition of new or more stringent rules. Some are reflected in the amendments and new clauses we have tabled and include the impact of fees and charges on citizenship applications; data-sharing policies; the application of income thresholds for the admission of family measures, including parents and children; no recourse to public funds conditions, which can affect children; the position of unaccompanied asylum-seeking children; and provisions relating to detention, deportation and removal. As we discussed earlier, schedule 1 may disapply certain provisions of EU law or EU-derived rights, and that, too, could affect children in some cases, such as those who are victims of crime or trafficking.

In all those circumstances, my amendment would provide assurance that the impact of any rules made using the powers in clause 4 would be subject to the requirement that they have no detrimental effect on the children of EEA and Swiss nationals resident in the UK, whatever led them to be here and whatever their status while here.

The second limb of my amendment refers to the requirement to produce a report to Parliament, which would impel the Home Office to develop processes to undertake a systematic assessment of the impact on children of any planned new immigration rules, which does not appear to happen routinely at the moment. Such an approach would also underpin a best interests approach to the application of immigration rules in individual decisions, buttressing the provisions of section 55 of the Borders, Citizenship and Immigration Act. Again, there is little sign that a systematic approach to children’s best interests is embedded in Home Office decision making, and the requirement for immigration rules to protect children’s rights and interests must be supported in the design of decision-making processes and appropriate staff training. I hope the Minister will accept my amendment.

[Stuart C. McDonald]

I apologise, Sir Edward, but in my excitement over the Henry VIII clause and various other delegated powers, I forgot to speak to amendment 22, so I will speak to it briefly. It is slightly different from the amendments I spoke to earlier, which sought to rein in the powers the Home Office is trying to give itself in clause 4. Amendment 22 is more about setting out some guidance as to how those powers should be used, and to set out some principles. I, and I dare say any MP, could come up with 10 or 20 principles by which we would like the Home Office to abide. I have discussed these proposals with Amnesty International and they are good examples of the sort of framework we should provide at the Home Office, rather than giving it a blank cheque to introduce whatever system it sees fit.

The first of the amendment’s five principles is that these rules should be exercised to promote family life. Why have we allowed the Government to deliver tens of thousands of what England’s Children’s Commissioner called “Skype families”, separated by some of the most draconian anti- family migration rules in the world? Why did we watch as the Home Office simply withdrew the concession that generally allowed families with children who had been here seven years to settle permanently? The amendment would lay down a principle that would guide the Home Office to exercise its delegated functions in a way that promotes family life rather than undermining it.

The second principle relates to appeal rights. Everyone in this room believes in the rule of law, a facet of which is that a person should have a ready and accessible means of challenging their removal from the country in which they have made their home. To disagree with that simple proposition would be to ignore some of the key lessons from Windrush.

Thirdly, we need to stop putting so many people through a tortuous process before they have security of residence in this country. If people have been here for years on end, especially during childhood, why are we charging them many thousands of pounds over a 10-year period, with application after application after application? It is a disaster for the families affected and a total waste of Home Office time and resource. Let people move on.

Fourthly, if people are here for family reasons and fall on hard times, do we really want to say that they will just have to suffer and that the safety net we provide for others in a similar situation should not be available to them? If people are here to accompany family, why are we saying to them that they have to put their lives on hold and that they cannot seek work? These features of our immigration system are regressive, counter-productive and, frankly, prehistoric.

Finally the fifth principle is about treating people fairly and not pulling the rug from under their feet once they are here. Of course, rules and policies will change from time to time, but it is highly regrettable that we allow people to come to the UK on a particular visa route and then change the rules so that they apply not just to new people coming in but to those who are already here, making it difficult, if not impossible, for them to remain. A perfect example was the change to the financial threshold for tier 2 visa holders seeking settlement. Imagine if someone has been here for three or four years and met all the salary requirements, only for the Home Office to then say, with a year to go, “This was the salary threshold you had before, but actually we have upped it by £5,000 or £6,000 or £7,000.” That is a retrospective rule change, and it is totally unfair to operate it in that way.

I could have added many more principles to those I would like to see guiding the Home Office. These principles say that if we are going to give the Home Office these powers, we want them to be exercised in the interests of family, the rule of law and stability, protecting against retrospective rule changes and providing financial security. For too long, the Home Office has disregarded those principles. It is time that we as MPs say that it should stop doing that.

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

Stuart C McDonald Excerpts

Committee stage & Committee Debate: 5th sitting: House of Commons
Tuesday 16th June 2020 Public Bill Committees

[Kate Green]

The issue is the mission creep and scope creep involved in using secondary legislation to amend primary legislation and retained EU rights, particularly a mission creep that now encompasses the ability to make significant policy changes.

As we heard in oral evidence from our witnesses last week, it is important to recognise the considerable importance of policy and legislation in relation to social security co-ordination. It is vital to labour mobility, and to protect the rights of EEA nationals who come to live in the UK and UK nationals who go to live in EEA member states. Policy in this area has the potential to impact the lives of millions, affecting their right to receive benefits to which they are entitled through national insurance contributions over periods of residency, and which they have a legitimate expectation that they will receive. Changes to policy in these important areas should, I submit, be given effect in primary legislation.

In response to the evidence that the Committee took from British in Europe last week, the Minister said that the Secretary of State could not make regulations that would breach an international treaty, and he offered some reassurances this morning to those who fall within the scope of the withdrawal agreement. However, as British in Europe pointed out last week, the powers in clause 5 mean that Parliament will not be able to properly scrutinise regulations that might breach our international treaty obligations—if not deliberately, then inadvertently.

The Minister also referred to the need to be able to reflect the ongoing negotiations with the European Union, and we heard from Adrian Berry of the Immigration Law Practitioners Association last week about the UK’s draft social security treaty, which is an annex to the Government’s proposed future trade agreement. Mr Berry highlighted the Government’s intention to continue the protection of the European health insurance card scheme for short-term travel and the uprating of old-age pensions, but noted that disability pensions and healthcare attached to pension rights are missing from the draft treaty. He also highlighted the limitations of the new EHIC, which would require those with long-term health needs to get prior authorisation from the UK Government, and that there would be no S2 cover, which enables people to obtain healthcare in the EU that they cannot get on the NHS in the UK. Will the Minister put on the record whether such changes could be introduced using clause 5, and can he confirm which classes of person they can be applied to?

The Government have argued that the use of the powers in clause 5 will be subject to parliamentary scrutiny, through the use of the affirmative procedure. Will the Social Security Advisory Committee have a role in scrutinising regulations introduced under this measure? Does he not in fact accept that changes in this important area require full debate and scrutiny in Parliament, and that the principles of any future policy should be set out in primary legislation?

Finally, clause 5(5) states that EU-derived rights cease to apply if they are “inconsistent” with any regulation made under the section, but the Government are under no obligation to specify where and when such inconsistencies arise. This creates considerable uncertainty for individuals who are affected, for their advisers, and indeed for politicians and the wider public. As we discussed last week on clause 4, such an approach is inimical to good lawmaking. The Government should spell out which parts of retained EU law might be affected by these provisions, and I hope that the Minister will do so in his response.

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

It is a pleasure to serve under your chairmanship again, Sir Edward.

I am grateful to the Minister and to the hon. Member for Stretford and Urmston for setting out the nature of these regulations in quite some detail, and also for explaining why they are hugely significant for a large number of people.

We acknowledge that there is a need for the appropriate authorities to have some powers in this area, but those powers should be focused on making technical fixes rather than providing carte blanche. The powers in the clause are hugely broad. In fact, they are basically without any limit, either in terms of scope or time, and it is worth reflecting on what exactly clause 5(1) says:

“An appropriate authority may by regulations modify the retained direct EU legislation mentioned in subsection (2).”

There is no constraining test at all.

As Adrian Berry argued when he gave evidence last Tuesday, all these clauses should at least have the test of being “appropriate”, if not being “necessary”, as a qualification. Opposition MPs have been championing the “necessary” test, but the Government have always preferred the test of appropriateness. However, even that is absent from the clause. On paper, therefore, we are creating powers to make inappropriate regulations, which seems quite an unusual concept. More than ever, we need reassurance on what exactly the intended use of these regulations is, and we will look carefully at what the Minister said about that this morning.

I also want to raise an issue on schedule 2, which the Minister also referred to. Schedule 2 sets out who can make use of the powers in clause 5, and I want to flag up an issue in relation to devolution that needs to be addressed. It was flagged up by the Scottish Parliament’s Delegated Powers and Law Reform Committee last year in relation to the predecessor Bill. The Committee reported on that Bill precisely because there are implications for some devolved competences around social security.

There are three routes by which the clause’s powers could be used in relation to devolved social security competence. First, Scottish Ministers could exercise these powers, sometimes with the requirement to consult UK Ministers, if that were required where a different route was used to achieve the same means. The Committee found those powers acceptable.

There is also a route for joint exercise of the powers, which would be considered where a change is so significant that it would be appropriate for joint exercise and scrutiny. Again, while the Committee sought some clarity on precisely when that route would be used, it supported the idea in principle.

Thirdly, however, there is the route of UK Ministers acting alone, by laying regulations in the UK Parliament that could still relate to devolved competence. The Committee’s report says:

“The Committee emphasises that as a matter of principle the Scottish Parliament should have the opportunity to scrutinise the exercise of legislative powers”

by the Executive. However, it notes that the Scottish Parliament has no formal role in relation to the scrutiny of secondary legislation passed by UK Ministers acting alone.

The Committee went on to note that there was silence in relation to the circumstances in which it would be appropriate for UK Ministers to exercise powers in relation to devolved social security acting on their own. It noted that there was nothing on the face of the Bill requiring UK Ministers to seek the consent of Scottish Ministers prior to the exercise of the powers in that way by relevant UK Ministers or the Treasury. It repeated the view that it had provided in relation to the Bill that went on to become the European Union (Withdrawal) Act—that UK Ministers should be able to legislate in devolved areas only with the consent of the devolved Administration, also advocating for a role for the Scottish Parliament in that process.

--- Later in debate ---

[Kevin Foster]

I thank hon. Members for their contributions. On the powers under clause 5, the Government have been given clear advice that they are necessary, particularly when we look at the ongoing negotiations. There are two parties to the negotiations, and the purpose of having a wider scope is to reflect whatever the outcome of the negotiations is. Hopefully, we will quickly be able to implement an agreement, in the same way that we have an agreement with Ireland bilaterally in terms of the co-ordination of social security, given the unique position of Irish citizens in the UK and UK citizens in Ireland, who are considered settled from day one. That is where we are.

One of the examples Opposition Members gave was of those protected by the withdrawal agreement. It is worth noting that this measure looks towards those who arrive after the end of the transition period and starts to look towards changes there, rather than at those who specifically have their rights protected by the withdrawal agreement.

In terms of the scope and whether the powers would be used in a devolved area, the UK Government continue to respect the devolution settlement. We are in discussions —officials certainly are, and I and my colleague in the Department for Work and Pensions wrote to the relevant Scottish Minister last week to set out where we are. We hope to have a legislative consent motion from the Scottish Parliament, but we have also set out what the position is if we do not get an LCM—for the Committee’s benefit, the Government would amend the Bill on Report to remove the powers in relation to devolved matters in Scotland.

Fundamentally, the clause is intended to ensure that we can implement powers and make the changes necessary, as outlined, to deliver the specific policy changes that we made clear in our manifesto, particularly around the export of child benefit, and also to ensure that we do not end up in a bizarre position where the UK is trying unilaterally to implement what is meant to be a reciprocal system, should we not be able to get a further agreement or if we have an agreement but are not able quickly and promptly to implement it.

Again, I would point out that using the affirmative procedure means that both Houses of Parliament will scrutinise any regulations and will have the opportunity to block them if they felt they were inappropriate. To be clear, if a Minister made wholly inappropriate regulations, such matters in secondary legislation, unlike primary legislation, can be reviewed in the courts as well.

It is therefore right that we stick with the clause as it is, certainly to ensure that we can implement whatever the outcome of the agreement is, including if we need to look at putting in place a system that reflects the fact that there has not been a further agreement.

[Stuart C. McDonald]

I just want to clarify whether the Minister would at least consider putting in a requirement that, before UK Ministers exercise these powers in relation to devolved competencies, they would consult Scottish Ministers. A cross-party Scottish Parliament Committee made that recommendation this time last year. It is surely at least worthy of consideration before Report.

[Kevin Foster]

To be clear, we will continue with our position of respecting devolution in areas of social security, hence the respect we have shown to the Scottish Government by consulting them about the Bill. We have also set out the Government’s position, were there not a legislative consent motion from the Scottish Parliament, in the letter we sent last week to the relevant Scottish Ministers. Obviously, separate discussions are going on with the Executive in Northern Ireland.

This is the right process. Parliament still has the appropriate ability to scrutinise how the powers are used and, if it wishes, may block the use of those powers under the affirmative procedure. This is about ensuring clear certainty that we can deliver whatever we can agree with the European Union on, we hope, a continuation of a reciprocal arrangement, which we cannot do if we do not have the powers in the clause. In other areas, powers are more restricted.

These are wide powers, but that reflects the wide range of outcomes that are still possible in the next six months. It is right to have a functioning and effective social security system and co-ordination of it. That is why the Government have brought the power forward in this Bill, as in the previous one. We maintain that the clause and the attached schedules are appropriate to the Bill.

--- Later in debate ---

Extent

[Stuart C. McDonald]

I beg to move amendment 17, in clause 7, page 5, line 13, at end insert—

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

[The Chair]

With this it will be convenient to discuss new clause 33—Differentiated immigration policies: review—

“(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;

(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.”

[Stuart C. McDonald]

Clause 7 sets out the extent of the Bill, so here we come to how it impacts Scotland and the other devolved nations. Amendment 17 would disapply provisions ending free movement to Scotland. The new clause simply calls for the Government to consult on, and to review, establishing a differentiated set of immigration rules focused on Scotland, Northern Ireland and Wales, and lists a set of issues that we want the UK Government to consult upon. The Government would then report and lay that report before Parliament. There is little here that is too onerous. It is a perfectly reasonable request of the UK Government.

We heard plenty of concern about the implications of the Bill during evidence last Tuesday. It is fair to say that that concern is felt acutely in Scotland and Northern Ireland, but also in Wales and some regions of England. Scotland needs in-migration, and free movement of people has been a significant benefit to that country. The Government’s own risk assessments indicate a huge impact on the number of EEA workers who would qualify under the proposed new salary and skills requirements of the new regime. That is before we take into account the visa fees and the red tape, which I regard as ludicrous, that businesses will be bound up in. That has profound implications for Scotland’s economy, demographics, public finances and devolved public services.

Scotland’s economy relies significantly on small and medium-sized enterprises, which, as we heard last Tuesday, will find the tier 2 system very difficult. Small tourism or food and drink businesses, for example, that have regularly relied on the EU labour market are finding it well-nigh impossible to fill posts domestically. Instead of being able to interview a Portuguese food-processing worker or a Polish hotel worker, there is a significant chance that they will not be able to employ them at all. If they are able to employ them somehow, processes will be very different indeed.

The worker will have to seek entry clearance from their home country, so recruitment practice will have to change. Business will have to shell out for a sponsor licence and possibly on legal advice on how to do all that. The worker will have to pay visa fees plus upfront NHS health surcharges, not just for the main applicant but for the whole family. A skills charge will also be levied. As we heard last week, that could take the costs to the applicant to many thousands of pounds.

[Mr Goodwill]

I understand the point the hon. Gentleman is trying to make, but would it not attract more people to stay and work in Scotland if it was not the highest-taxed part of the United Kingdom?

[Stuart C. McDonald]

That is factually not true, so that is the end to that point. If the right hon. Gentleman is referring to the changes to the rate of income tax that we have made in recent years, there is no evidence that they have made a blind bit of difference. In fact, there are more people in Scotland paying less income tax, and that is before taking into account council tax and various other matters, so that point does not arise at all.

It seems that a huge proportion of the burden of all these fees falls to be paid by the individual worker. Realistically, however, why would a Portuguese food-processing worker or a Polish hotel worker pay £10,000 for the privilege of working in Scotland when they face no charge to work anywhere else in the European Union? The lower income tax that we pay in Scotland would be attractive, but it does not outweigh the £10,000-plus they would have to pay just to turn up.

Scotland has become a country of regular net in-migration, largely thanks to the free movement of people. But for in-migration, our population would have again been in decline since 2015—something that is projected into the future, with more deaths than births. Ending free movement risks pushing Scotland back to a future of population decline. Like other countries, our population of older people is increasing. That is not unique to us, but unlike other countries, in the UK in particular, our working-age population will rise only fractionally in the years ahead, according to various projections.

That brings us to the issue of public finances and devolved public services. There has been a welcome devolution of tax-raising powers in recent years, to which the right hon. Member for Scarborough and Whitby referred. However, with those tax powers now in place, the problem is that we are suddenly seeing the tax base shrunk by immigration policies. That has a direct impact on income tax receipts and also on the economic growth and tax revenue that companies’ VAT.

--- Later in debate ---

[Douglas Ross (Moray) (Con)]

Another report that is publicly available is the SNP’s White Paper ahead of the 2014 independence referendum in Scotland. Will the hon. Gentleman outline the proposals for immigration in that policy?

[Stuart C. McDonald]

I have no problem in outlining the paper. This point was got up on Twitter, as if it was a gotcha for the SNP. In that White Paper we advocated a points-based immigration system for those coming from outside the EEA, but we also advocated for the free movement of people. [Interruption.] The Minister looks as if I have been caught in some sort of trap. I am perfectly happy to support a points-based system for Scotland for people coming from outside the EEA. That is not a problem at all. But there are points-based systems and there are points-based systems. [Interruption.] People are chuckling away as if I am talking nonsense, but the Canadian points-based system is significantly different from the points-based system in Australia. The system proposed by the UK Government is barely a points system, and if hon. Members speak to anyone who knows the first thing about immigration law policy, they will say that there is barely a resemblance. Despite all the rhetoric, there is a tiny resemblance between what the UK Government are proposing and what the Australian points-based system is proposing.

On the issue of flexibility and regionality, the Australian points system includes some variation to take account of the different needs of different provinces. If the Australian points-based system is so wonderful, why has it not been replicated in any meaningful sense by the UK Government, including in respect of regional flexibility? Yes, the 2014 White Paper did refer to a points-based system for people from outside the EU—one that would be tailored for Scotland’s circumstances, not one that is completely inappropriate for it.

Ian Robinson and Fragomen, leading international practitioners, looked at the example of Canada, Australia, Switzerland and New Zealand and put forward a whole host of possible options. As they said last week, one of those options would be simply to allow the free movement rules to continue to apply in Scotland. If a hotel in the highlands of Perthshire is recruiting, it can continue to recruit from the EEA just as it does now.

However, there is a huge range of possibilities, from more radical suggestions, such as retaining free movement, all the way down to tailoring the points-based system to suit Scotland’s needs. That brings me to a very modest suggestion that I am bound to bring up; it is a suggestion from my hon. Friend the Member for Na h-Eileanan an Iar (Angus Brendan MacNeil) that I think he may have raised directly with the Minister. It is simply to ensure that points are awarded in this system for Gaelic language skills as well as for English.

This is not just about Scotland, however. The challenges in Northern Ireland will also be unbelievably acute and perhaps even more so, given the land border that it shares with a country not only where businesses benefit from free movement of people, but that runs a completely independent immigration system, tailored to meet its own needs, while still being part of the common travel area. Business in Northern Ireland may face thousands of pounds in immigration fees just to try to attract the very same people who, a few miles down the road, could take up the position totally free of cost and bureaucracy. Merely saying that this system will work for all of the UK does nothing to address that problem.

Even if the Government do not want to properly engage in debate and discussion with SNP MPs or Ministers in the Scottish Government, I urge the Minister to listen to and engage with other voices who are speaking out on this issue. Businesses, business groups, think-tanks, civic society, universities and public sector organisations are all hugely concerned about it. The Minister just needs to do a Google search for commentary in Scotland and Northern Ireland in particular on their response to the Government’s most recent proposals.

[Mr Goodwill]

Is the hon. Gentleman aware that figures released only this morning show that the unemployment rate in Scotland is now the highest in the United Kingdom, at 4.6%, compared with a UK rate of 3%? That means that unemployment has risen by 30,000 to 127,000. Does he not think that those are the sort of people we should be getting into jobs in Scotland and that we should not be looking to the EEA to provide the people?

[Stuart C. McDonald]

The economic impact of coronavirus is of course a tragedy, and every lost job is an absolute tragedy as well. Yes, of course we will focus our efforts on ensuring that people are back in work as soon as we can do that, but we cannot design our immigration system for the next decades based on this calamity. If the only reason Conservative Members can come up with to support this system being implemented in Scotland is that we are going through a pandemic, that is pretty farcical, given that these proposals have been in existence for the last few months, so no, I do not accept that it is any reason for shying away from the points that I am making. The system will cause huge long-term damage to Scotland’s economy and Scotland’s public finances. It is not just me saying that; a whole host of organisations have real concerns.

Again, I am not expecting the Government to do a 180-degree U-turn today, but I do want at least some recognition that there are genuine issues that require more than just our being told that this system will somehow work for Scotland, Northern Ireland or any other devolved nation.

[Brendan O’Hara (Argyll and Bute) (SNP)]

It is a pleasure to serve under your chairmanship again, Sir Edward. Although the United Kingdom’s population is projected to rise by about 15%, it is reckoned that the population of our rural areas, including my own constituency of Argyll and Bute, will fall by as much as 8%. The situation is absolutely unsustainable because, despite Argyll and Bute being an exceptionally beautiful part of the world, we have an ageing and non-economically active population and our young people leave to spend their economically productive years outside Argyll and Bute.

To give credit to the council and to the Scottish Government, they are doing what they can to make Argyll and Bute a place that young people do not feel that they have to leave before coming back to retire—many of them do—but before that long-term goal reaches fruition, a cornerstone of Argyll and Bute Council’s plan for economic regeneration was predicated on continuing access to EU nationals and attracting them into the area. Regrettably, and through no fault of our own, that option has been taken from them; and the UK Government, having taken that option from them, now have a responsibility to provide a solution that will help those areas suffering from depopulation to recover. It is becoming increasingly clear that a major part of that would be the introduction of a regional immigration policy similar to that which works in Canada, Australia, Switzerland and other countries, and one that reflects the different needs of different parts of the country. There is no reason, other than political will, why that cannot happen here.

--- Later in debate ---

[Kevin Foster]

Perhaps the point has been made, then, that this is not about having an immigration system based on a council area, but about having one for an area smaller than that of a council. I think that that would lead to confusion, with multiple areas.

There are many issues across large stretches of the highlands, and also rural parts of the rest of the United Kingdom. The fact that there are challenges in ensuring that younger people in particular have opportunities, and options to stay, is a facet of the issue that is not unique to parts of Scotland. However, if we do not deal with the core issues, most of which fall under the remit of the devolved Administration in Edinburgh, those pull factors will still exist, and the migration system is not a magic cure for them.

[Stuart C. McDonald]

It is a question of having strategies in place to address the challenges, but I want to pin the Minister down on the question of the remote areas pilot. That is a recommendation from the MAC. Can the Minister say categorically that this morning he is ditching it, and that there will not now be a remote areas pilot scheme? That would be really bad news.

[Kevin Foster]

We made it clear in the policy statement that we put out in February that we were not planning a remote areas pilot. Again, the thing that we must focus on is that many of the pull factors exist. It is within the competence of the Scottish Government to deal with those issues, and to create something and tackle them.

I have seen how Members of Parliament in the north-east of Scotland, including my hon. Friend the Member for Moray and my hon. Friend the Under-Secretary of State for Scotland, the Member for Banff and Buchan (David Duguid), are pushing for the creation of those economic opportunities that they want in parts of rural Scotland. Perhaps the one hope that we have on this point is that there is a Scottish Parliament election coming next year. I hope that there will be a more business-focused, opportunity-based Administration in Edinburgh, which will be focused on developing Scotland, not separating it.

--- Later in debate ---

[Stuart C. McDonald]

Will the Minister do us the favour of explaining how his immigration policies will make the challenges easier rather than harder for Scotland?

[Kevin Foster]

The first thing that our immigration policy will do is provide a points-based system on a global basis, based on RQF3 and on having a shortage occupation list. Businesses in Scotland can recruit globally on that basis. Also, we can look at the first reform, which we have already carried out—a route that I was pleased to launch in Glasgow. I have seen it at first hand—the best talent being brought into our universities, and particularly into the University of Glasgow. Under that system, on a global basis, teams can be recruited to tackle and research some of the most challenging questions that mankind faces. On the occasion in question the issue was tackling malaria, and the huge impact of that.

Those are the sorts of benefits we want: high value and high skill—the attractions are there. It is a vision for Scotland, whose natural beauty is second to none, based on skills and the attractiveness of a high-skill, high-value economy—not on saying that the main thing Scotland’s economy needs is the ability to put more people on the minimum wage on a global basis.

[Stuart C. McDonald]

The Minister mentions his visit to Glasgow all the time. While he was there, did he speak with Universities Scotland, which is among the organisations that has spoken out in favour of a differentiated system? This is not just coming from the SNP. The Minister has also spoken about the benefits of his new system, but his own risk assessment says that it will cause levels of immigration to Scotland to fall. How is that in Scotland’s interests?

[Kevin Foster]

We engage strongly with partners, particularly our high-compliance Scottish universities that are sponsors of tier 4 visas. We very much welcome the contributions they make, as well as those that they make as part of wider groups, such as the Russell Group, that operate on a UK-wide basis.

There are two visions, I suppose. There is one that my hon. Friend the Member for Moray and his colleagues from Scotland bring us: a high-productivity, high-value Scotland, an attractive place to live with a thriving economy, recruiting on a global basis. Then there is the Scotland that the Scottish National party brings us; the only reason someone would go there would be to pay low wages or recruit at, or near, the minimum wage on a global basis. That, to me, is not a particularly inspiring vision.

Many of the powers to deal with the pull factors that lead to depopulation in rural areas are already in the hands of the Edinburgh Administration. As with so many other things—this has been touched on in relation to social security—it is time to see the Scottish National party getting on with the job of governance, rather than the job of grieving or looking to separate the United Kingdom.

The hon. Member for Cumbernauld, Kilsyth and Kirkintilloch East will not be surprised to hear that the Government’s position has been made very clear on this issue, but I will briefly set it out again. Immigration and related matters, such as the free movement of persons from the EU, are reserved matters, and the immigration aspects of the Bill will therefore apply to the whole United Kingdom. The Government are delivering an immigration system that takes into account the needs of the whole of our United Kingdom and works for the whole of it, not for the political needs of those whose goal is its separation.

We do not believe that it would be sensible, desirable or workable to apply different immigration systems in different parts of the United Kingdom, and the independent Migration Advisory Committee has repeatedly advised that the labour markets of the different nations of the United Kingdom are not sufficiently different to warrant different policies. That was an independent report—the type that people seem to want, but then do not seem to want to listen to.

[Stuart C. McDonald]

Will the Minister give way?

[Kevin Foster]

No, I have given way many times. As we heard in the evidence sessions, the simplistic argument saying that Scotland is different from England for political reasons ignores the variation within Scotland itself, given the strength of the economy in Edinburgh compared with the economies of more rural areas.

I do not propose to address new clause 33 in detail; as I say, we have seen the MAC’s conclusions on this issue. The Government’s objection is one of principle: immigration is, and will remain, a reserved matter. We will introduce an immigration system that works for the whole of our country and all the nations that make up our United Kingdom by respecting the democratically expressed view of the people in the December 2019 general election and the 2014 vote of the Scottish people, which rejected separation. Both Alex Salmond and Nicola Sturgeon used the phrase “once in a lifetime” or “once in a generation” about that vote; now, only six years later, we see how short a generation has become. Free movement will end on 31 December, and we will introduce a points-based immigration system that ensures we can attract the best talent from around the world to Scotland, based on the skills and attributes they have, not where their passport comes from.

It will come as no surprise that SNP Members and I will have to agree to differ, as we regularly do on issues that relate to the constitutional future of Scotland. I obviously hope that the hon. Members for Cumbernauld, Kilsyth and Kirkintilloch East and for Argyll and Bute and the hon. and learned Member for Edinburgh South West will withdraw their amendments—although I have a sneaky feeling that they may not—and I particularly hope that others on this Committee who have also voiced their opposition to separatist politics will join the Government in opposing these amendments if they are put to a vote.

[Stuart C. McDonald]

I sort of thank the Minister for at least making a contribution, but I have to say that, having shadowed about six or seven immigration Ministers for five years, I think that is probably the most regrettable speech I have heard from any of them at any time; the second most regrettable was the one the Minister made during the Opposition day debate a few months ago. It might play well with some MPs in this place, but I watched the faces of some Scottish Conservative MPs that night, and they were not impressed.

The Minister is speaking not just to the SNP, but to business groups and public service organisations—a whole host of concerned organisations in Scotland. He might get away with it in this Committee, but he cannot really get away with dismissing their concerns as “nationalist nonsense” or “separatist rubbish”. These are very serious people with very serious concerns about the implications of his Government’s migration system for Scotland. It seems to be not so much a case of, “We hope it will be all right on the night”, but one of, “We don’t care—stuff you!”

--- Later in debate ---

Division 11

Ayes: 7

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Labour: 5
Scottish National Party: 2

Noes: 9

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Conservative: 9

[Stuart C. McDonald]

I beg to move amendment 11, in clause 8, page 5, line 41, leave out subsection (5) and insert—

‘(5) This Part of the 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 this Act on faith communities in the UK.

(6) A report under subsection (5) must consider in particular the ability of members and representatives of faith communities from the EEA and Switzerland to enter the UK for purposes related to their faith.

(7) 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.

(8) In this section,

“faith communities” means a group of individuals united by a clear structure and system of religious or spiritual beliefs.”

This amendment requires the government to report to Parliament on the implications of this Bill for faith communities, including the ability of members of faith communities to come to the UK for reasons connected with their faith.

Some 18 months or so ago, the then Minister of State for Immigration issued a written statement announcing changes to immigration rules. Apparently, those changes were to ensure that ministers of religion could no longer apply for a tier 5 religious worker visa; instead, they would have to apply for a tier 2 minister of religion visa. As I understand it, that was done because of a fear at the Home Office that people were coming in under the tier 5 visa route and leading worship while not having the level of English that the Home Office decided would be necessary to perform such a function. The explanatory memorandum said:

“The Immigration Rules currently permit Tier 5 Religious Workers to fill roles which ‘may include preaching, pastoral work and non-pastoral work’. This allows a migrant to come to the UK and fill a role as a Minister of Religion without demonstrating an ability to speak English.”

For some reason, the Home Office also decided to introduce a cooling-off period. The explanatory memorandum said:

“The ‘cooling off’ period will ensure Tier 5 Religious workers and Charity Workers spend a minimum of 12 months outside the UK before returning in either category. This will prevent migrants from applying for consecutive visas, thereby using the routes to live in the UK for extended periods, so as to reflect the temporary purpose of the routes better.”

I have been in discussions with representatives of the Catholic Bishops’ Conference about migration to both Scotland and England. They tell me that most Catholic dioceses previously used tier 5 religious worker visas for priests to come here on supply placements while parish priests were away for short periods because of sickness, training or annual leave. Those supply placements were essential, as they allow Catholics to continue attending mass while keeping parish activities running smoothly. That allows the parish to continue to function while the parish priest is off through illness, going on a retreat or accompanying parish groups on outings, or even just taking a holiday.

A supply placement priest will lead the celebration of holy mass, including the celebration of the sacrament of marriage. He will lead funerals, including supporting bereaved family members, and visit the sick and elderly of the local community. In an age when social isolation and loneliness are increasing, the parish is a place where people can gather as a community to support one another and engage in friendship. It is not just about worship, but about the community hub that the church provides by offering spiritual and practical help and supporting the sick, the elderly, the needy and the vulnerable.

[Mr Goodwill]

In my own constituency there is a Coptic Christian community; it is a closed order, so they do not preach. The system already works very well for non-EEA residents. Is the hon. Gentleman suggesting that, if we do not extend the scheme to the EEA, there will be barriers for people coming to the UK in the way that he describes?

[Stuart C. McDonald]

I will come to that point in a minute. In short, the point made to me by the Catholic Church and other faith groups—we had a debate on this issue in Westminster Hall around the time of the changes—is that, actually, the system for non-EEA nationals used to work but does not work now, precisely because of the changes that the Home Office made 18 months or so ago.

The system is much more expensive now, and it is beyond most parishes’ ability to pay the fees for ministers to come in and lead worship. If they come in under tier 5, which is the much cheaper option, they are no longer allowed to lead worship or whatever else. They can perform a range of functions, but not the ones that are really needed, including leading worship.

The issue is already a problem now and it will be made infinitely worse, because at the moment parishes can still rely on priests or other leaders coming from the EEA. They do not have to pay for the expensive tier 2 visa; they can just come in under the free movement of people. When free movement comes to an end, the same regime will apply and parishes will have to pay all sorts of fees, even to have priests come in from France, Italy, Poland or wherever else. They are not looking forward to that prospect at all.

As I was saying, visiting clergy not only allow the local community to continue to function, but benefit and enrich the whole community, as the community gains from cultural exchange and from sharing the knowledge and experience of priests from other parts of the world. They educate new communities about life in their country, and they open up avenues for local parishes to support communities in need. What was most surprising about the changes was that, as far as the SNP was aware, there had been no problems with visas for the Catholic Church or any of the other faith organisations that made use of the tier 5 route. The new requirement introduced in 2019 for anyone preaching to use tier 2 minister of religion visas has instead more than doubled the costs incurred by parishes arranging supply cover. For some parishes that is unsustainable, compromising people’s opportunity to practise their faith.

Furthermore, they point out that seminaries conducting formation in English are not necessarily recognised by the Home Office as meeting the English requirement under the tier 2 route, meaning that many priests educated to postgraduate level in English are nevertheless required to take a language test, with the extra logistical and cost implications. The new arrangements more than double the costs, making supply cover essentially unaffordable. I have heard directly from religious leaders in my constituency that that is the impact of those arrangements. Unless reforms are made, the situation will be worsened by the end of free movement, as I said in response to the intervention from the right hon. Member for Scarborough and Whitby (Robert Goodwill). I simply ask the Government to engage with faith communities about the challenges that this is causing them to face, and to see if we might be able to come to a solution that makes these sorts of arrangements continue to function in the years ahead.

[Brendan O'Hara]

As my hon. Friend said, the tier 5 religious visas were operating perfectly smoothly for the many Churches and religious organisations that relied on them until these unexpected changes were made. Catholic parishes throughout the UK—including my own in the Archdiocese of Glasgow—regularly used these visas as routes for priests to come to the UK on supply placements.

The changes that came into force in January are already causing something of a headache for a whole host of religious organisations that require clergy to visit to cover for periods of illness, holiday, religious retreat, or when priests or other clergy are away on pilgrimage. This is a time of a crisis in vocation, clergy are becoming increasingly elderly, and more and more parishes and dioceses are turning to priests from outside the UK to cover such absences, sicknesses and holidays, so it beggars belief that the measure would have been introduced in this way.

It is important that the Minister realises that the tasks of a parish do not stop when the existing or resident priest falls ill, or goes on a well-earned holiday or retreat. As pointed out by my hon. Friend the Member for Cumbernauld, Kilsyth and Kirkintilloch East, the church is more than just a place of worship, it is also a community hub providing both spiritual and practical support to the sick, elderly and vulnerable, as demonstrated by the great work of a number of organisations including the Society of Saint Vincent de Paul. The Bishops’ Conference of Scotland has been clear in saying that much of the positive work done in and around Catholic parishes which engenders that sense of community is being seriously undermined and compromised by these changes. The Home Office has to understand and recognise the benefits of allowing priests from other parts of the world to come in on a tier 5 visa. They enrich the whole community. It is a cultural exchange, it is a share of knowledge, a share of experience by priests and clergy from other parts of the world.

It is not just the Catholic church. Indeed, the Church of Scotland is on record as saying that it opposes the measure. Many of us are confused as to why these changes were deemed necessary. What grave issue has arisen that needed to be addressed in such a draconian fashion? The Scottish bishops said that for years they had sponsored priests through the tier 5 process, and they are completely unaware of any abuse of the system whatever. For years, priests came here, they worked and preached in Scotland and across the UK, and then returned home. Indeed, 25 years ago this summer at St Helen’s church in Shawlands in Glasgow, Father Stephens from Malawi was the celebrant who married me and my wife, rather successfully I am happy to report. But the question remains: why did this have to happen? What was the motivation behind it? Can the Government not see the harm they are doing to our religious communities, and can they not act to stop it?

Finally, exactly a year ago in a debate on that in Westminster Hall, my hon. Friend the Member for Glasgow North (Patrick Grady) invited UK Ministers to meet the Bishops’ Conference of Scotland. Did Ministers take up that invitation? Did that meeting ever take place and, if it did, what was discussed and what outcomes were agreed? If it never took place, why not?

--- Later in debate ---

[Kevin Foster]

I am only too happy to do so and to put the Government’s thanks to him on the record. He provided an inspiration and a ministry that will be remembered for a very long time, and he broke the mould of what people expect from someone in such a senior position in the Anglican communion. Such contributions are very welcome and we want them to continue. We want to see that sort of person, particularly from the worldwide Anglican communion, as well as from the See of Rome—we have seen some amazing people come and be part of that community here in the United Kingdom. It is well worth paying tribute to such an example of someone who has achieved amazing things and revealed what he saw as God’s purpose for him as Archbishop of York. I am sure that we all wish him a very long retirement—not from holy orders, of course, which are a calling for life, but from his duties as archbishop.

I have heard the concerns expressed today about those who come to the UK for a very short term to provide cover while the incumbent minister is on holiday. It is worth pointing out our visitor rules, which will extend to EEA nationals as they currently extend to non-visa nationals, as I indicated earlier. In the immigration rules, the list of permitted activities specifically states that visitors may

“preach or do pastoral work.”

That allows many faith communities to hear inspiring preachers or hear about their faith’s work in other countries, especially in support of overseas aid and development work. Visitors are permitted to lead services on an ad hoc basis, which may provide a solution for communities that wish to invite visiting clergy to cover short-term absences, although they may not be paid for it—in many religious communities, that would not necessarily be a bar to providing a period of short-term cover.

It is worth my reminding the Committee that we have confirmed that EU citizens, who are the focus of the Bill, and EEA citizens more widely can continue to come to the UK as visitors without a visa, without prior approval, and use e-gates, where available, on arrival in the United Kingdom.

I hope that the SNP will consider its position on amendment 11. I say gently that we all need to reflect on whether it is appropriate to have faith communities led by those without a command of English adequate for the task—not least at a time when we need to come together more, not be separated by barriers of language. I therefore believe that the review that the amendment would put in place is not necessary. I invite the hon. Member for Cumbernauld, Kilsyth and Kirkintilloch East to withdraw the amendment, but I am always more than happy to discuss further how we can ensure that our faith communities are supported and that there is clarity on the three routes that I have outlined for ministers and those involved in faith communities to come to the United Kingdom and play the role that many have done in an inspiring way over many years.

[Stuart C. McDonald]

I am grateful to my hon. Friend the Member for Argyll and Bute and the hon. Member for Stretford and Urmston for their detailed contributions to the debate, and to the Minister for his response. We are back in much more convivial and consensual territory, and I much prefer it; I feel much more comfortable there. I am particularly grateful for the Minister’s offer to meet the Bishops’ Conference, which I am sure will be very welcome. This debate has helped us clarify how close we are to making sure the system works for all interested parties.

I scribbled down the fact that the Minister highlighted two routes, but of course there are three. Tier 2 is much more about the longer term, and affects ministers who want to come and settle, and the tier 5 route is not for people who will lead worship. Then there is the visitor category, but, as the Minister said, it does not allow for payment to be made, and the organisations that I have spoken to say that if somebody is here for a couple of months, there are challenges if they cannot offer to pay.

We are close, but those three routes do not quite resolve the difficulties that we have highlighted. If the Minister is able to engage with the bishops’ conferences and other religious organisations, we may be able to tweak one of the three existing routes or come up with another one. It is probably better to fix the three than to come up with a fourth. I hope we will find a resolution, and I am glad that the Minister is engaging positively. For that reason, I see no reason to press for a vote, so I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[The Chair]

I have to be entirely neutral, of course, but it would be nice if the Government allowed us to have our religious services again, as has happened in the rest of Europe.

Clause 8 ordered to stand part of the Bill.

Clause 9 ordered to stand part of the Bill.

New Clause 9

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.”—(Stuart C. McDonald.)

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.

Brought up, and read the First time.

[Stuart C. McDonald]

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

[The Chair]

With this it will be convenient to discuss the following:

New clause 10—Extension of registration for EU Settlement Scheme—

“(1) The EU Settlement Scheme deadline shall be extended by a period of six months unless a motion not to extend the deadline is debated and approved by both Houses of Parliament.

(2) Any motion not to extend, referred to in subsection (1), must be debated and approved no later than three months before the deadline.

(3) In this section, ‘the EU Settlement Scheme Deadline’ means the deadline for applying for settled or pre-settled status under the Immigration Rules.”

This new clause would ensure the EU settlement scheme was not closed to new applications until Parliament has approved its closure.

New clause 11—Application after the EU Settlement Scheme deadline—

“(1) An application to the EU Settlement Scheme after the EU settlement scheme deadline must still be decided in accordance with appendix EU of the Immigration Rules, unless reasons of public policy, public security, or public health apply in accordance with Regulation 27 of the Immigration (European Economic Area) Regulations 2016 (as they have effect at the date of application or as they had effect immediately before they were revoked).

(2) In this section—

‘an application to the EU Settlement Scheme’ means an application for pre-settled or settled status under appendix EU of the Immigration Rules;

‘the EU Settlement Scheme Deadline’ means the deadline for applying for settled or pre-settled status under appendix EU of the Immigration Rules.”

This new clause would ensure that late applications to the EU settlement scheme will still be considered, unless reasons of public policy, public security or public health apply.

New clause 25—Report on status of EEA and Swiss nationals after the transition—

“(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 clarify the position of EEA and Swiss nationals in the UK during the period between the end of the transition period and the deadline for applying to the EU Settlement Scheme.

(3) A report under subsection (1) must include, but not be limited to, what rights EEA and Swiss nationals resident in the UK on 31 December 2020 have to—

(a) work in the UK;

(b) use the NHS for free;

(c) enrol in education or continue studying;

(d) access public funds such as benefits and pensions; and

(e) travel in and out of the UK.”

This new clause would require Government to provide clarity on the rights of EU nationals in the EU in the grace period between the end of the transition period, and the closure of the EU Settlement Scheme.

[Stuart C. McDonald]

With new clause 9, which stands principally in the names of my hon. Friends in Plaid Cymru, we turn to the central matter of the Bill: what will happen to EEA and Swiss nationals who are already here? The new clause simply calls on the Government to report on what the implications for EEA and Swiss nationals will be. That includes reporting on the impact of no recourse to public funds, NHS charging, the granting of citizenship to all EEA and Swiss health and social care workers working in the UK during covid-19, and certain fees. It also includes—we will probably not discuss this in great detail—the merits of the devolution of powers over immigration from the EEA and Switzerland to different parts of the United Kingdom. Those are all perfectly reasonable requests.

I want to focus on new clauses 10 and 11, which bring us back to the settlement scheme. We touched on that on Thursday, when Opposition Members made the case for a declaratory system, meaning that people would have their rights automatically enshrined in law. It would still apply to the settlement scheme so that they could prove their status and navigate employment, social security and other rights. I regret that the Government and the Committee rejected that proposal, but I have taken that on the chin and moved on. However, that puts the Government under a greater obligation to spell out what should happen to eligible individuals who do not apply for the settlement scheme by 30 June 2021. I have tried on a huge number of occasions to get them to reveal what work they have done to estimate how many people might not apply, even in broad-brush terms, and how they would respond.

As we heard in evidence, it is blindingly obvious that, even with all the good work that is going on, the Government will struggle to get above 90% of the target population. Getting above 90% would be a great success, given the international comparison. If the Government fall just 5%, 6% or 7% short of the target, hundreds of thousands of people will suddenly be without status and will lose any right to be in this country on 1 July 2021. By all accounts, this is a huge issue and we need to push the Home Office further to set out how it will address it. So far, all we have been told is that it will take a reasonable approach. That is fine, but it is not enough. We need much more detail, and new clauses 10 and 11 are designed to push the Government on that.

[Mr Goodwill]

Does the hon. Gentleman share my concern that extending the deadline by six months would encourage those who have been putting it off to put it off for another six months?

[Stuart C. McDonald]

Not really. People still have every incentive to apply for the scheme. On 1 July next year the deadline will have passed. People might put it off for six months, but I would far rather that than subject tens and probably hundreds of thousands of people to not having any rights at all. It is much the lesser of two evils. As I say, there are different ways in which we can do this. New clause 11 would allow people to apply after the deadline. I will turn to that in a moment. I want to set out exactly what new clauses 10 and 11 are designed to do.

New clause 10 would ensure that the EU settlement scheme was not closed to new applications until Parliament had approved its closure. We want to see what the plans are and scrutinise how the situation will be handled. Until we are satisfied, we will keep extending the scheme in order to protect people from the loss of their rights and from the hostile environment and the threat of removal. Why on earth should MPs give the Home Office a blank cheque to deal with this as it pleases? We will have that debate and the right hon. Member for Scarborough and Whitby can make his point that it will lead to a delay in people making applications, but I am firmly of the view that that is much the lesser of two evils.

On the closure of the settlement scheme, people who have not applied for a status will have no legal basis to remain in the UK after the grace period, no matter how long they have lived in the UK. They will be liable to removal and will face the hostile environment. After the grace period, a huge group of people will still not have applied. No similar scheme has ever reached 100% of its target audience. New clause 11 would bring back control of the situation to Parliament and allow us to be fully informed as to where the settlement scheme has got and what the Government’s plans are for dealing with this huge issue before we sign off on closure of the scheme. It is a modest proposal, but hugely important.

New clause 11 would ensure that late applications to the EU settlement scheme would still be considered unless reasons of public policy, public security or public health apply. In tabling the new clause, we are asking the Minister who he thinks does not deserve a second chance after 30 June next year. Who does not deserve the reasonable response that he has spoken about in the past? Under the new clause, applications made after the deadline could be ignored for restricted reasons relating to public policy, public security or public health. However, we want to know who, on top of that, the Minister thinks should be deprived of their rights and the ability to remedy the situation in which they find themselves. People will be unable to live in this country and they will be liable to removal. We need to know much more about the grounds on which people will be able to make a late application. What are the reasonable grounds that the Home Office will accept? They have yet to be defined. As far as we can tell, they will comprise only a very narrow list of exemptions, including, for example, for those with a physical or mental incapacity, and for children whose parents have failed to apply on their behalf.

As I have said many times, the deadline will be missed by many people for good reasons beyond those that I have just outlined. People will simply not be aware of the need to apply, and people with pre-settled status might forget to reapply for full settled status. I have set out a million times why people will not understand that the settlement scheme applies to them. Rules on nationality and immigration status in this country are hugely complicated. There will undoubtedly be people from all walks of life who think that they are British citizens and who already have a right of residence in this country. They will not appreciate that, in fact, they need to apply to the scheme. The consequences of making such a mistake can be dreadful. If we simply leave the Bill as it is, people will lose the right to be in this country and will be removed and subject to the hostile environment. Alternatively, we could at least leave open to them the option of being able to apply to the scheme after the deadline has passed. They would still have every incentive to apply, because they would need to evidence the rights that they access through the settled status process.

I ask the Government to look positively on these new clauses, and at the very least to provide much more information and assurance about how they are going to approach this issue. Up to this point, there has been barely a flicker of recognition that this is something that needs to be addressed, but we are talking about tens, possibly hundreds, of thousands of people being left in an appalling situation.

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

Stuart C McDonald Excerpts

Committee stage & Committee Debate: 6th sitting: House of Commons
Tuesday 16th June 2020 Public Bill Committees

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

In terms of intention, I think everybody in this room is at one. The Minister provides assurance in relation to people who miss the deadline through no fault of their own. Would that include people who, because of their complicated immigration nationality situations, had not appreciated that they needed to apply for the scheme?

[Kevin Foster]

I think it is safe to say that the list will not be an exhaustive one. There will need to be an element of discretion as we cannot list every single possible situation that might reasonably cause someone to be late in their application, but if, for example, they have had a difficult court case or something that meant they had not been able to apply, and a status had then been granted, it is likely that that would be seen as a reasonable excuse. It will be set out in guidance.

Our intention is to set out a list of situations that are not exhaustive but indicative. We can all think of circumstances that would be perfectly reasonable. For example, in the case of a child in the care of a local authority, we would expect the local authority to have made efforts to get them registered. We could make a very long list and still not get to an exhaustive level. The list will demonstrate grounds, but it will not be an exhaustive list of the only situations that we would accept as reasonable grounds for failing to apply on time.

As I say, we will take a flexible and pragmatic approach with those who miss the deadline. We have more than a year to go before the deadline. If people feel that they might need to make an application, the best thing to do is to find the information and make the application. That is our absolute focus at the moment. We are working closely with support groups to ensure that we can reach out to vulnerable communities who might need assistance. We have kept a range of support services running throughout the recent period and have now reinstated all routes for application, including paper applications that are made available to those with the most complex needs.

We want to encourage applications before the deadline. That will ensure that EEA citizens can continue to live their lives here, as they do now, without interruption. To make a commitment now that we would also consider all late applications would undermine that effort.

Where there are reasonable grounds for submitting a late application, we will consider the application in exactly the same way as we do now, in line with the immigration rules for the EU settlement scheme. That includes the consideration of conduct committed before the end of the transition period on the grounds of public policy, public security and public health, and of conduct committed thereafter under the UK conduct and criminality thresholds. As I have mentioned, we will publish guidance for caseworkers on what constitutes reasonable grounds, to ensure consistency of approach. Again, however, with more than a year until the deadline, it is premature to do so now, for the reasons I have given.

--- Later in debate ---

[Stuart C. McDonald]

It is a pleasure to serve under your chairmanship, Mr Stringer. I am grateful to all hon. Members for taking part in this debate and to the Minister for his response. There have been some useful comments, including on the transition period, in response to points made by the shadow Minister, the hon. Member for Halifax. We will take that back to discuss with concerned groups and may revisit the matter.

For those who fail to apply in time, we understand that there will be guidance in due course. Again, we are grateful for that little bit of further information on how that will function through a non-exhaustive list of types of case where caseworkers will look sympathetically on a late application. I am grateful for that. The Minister will understand that we will revisit that repeatedly between now and next June, due to our concern about what will happen to those people who have the right to be here but risk losing it.

As I said in my intervention, we have a similar purpose across the House; we just have different views on how to go about doing it. Having adopted this course of action, we will continue to press and push the Government at every possible opportunity, so that we get the maximum reach possible and as few people as possible lose their rights and end up being cast adrift in a hostile environment or lose their right to be in this country altogether.

The two new clauses were possible solutions to that. I will go away and think again about their detailed drafting. The Minister provided some interesting comments in that regard. At this juncture, I beg to ask leave to withdraw the motion.

Clause, by leave, withdrawn.

New Clause 12

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.’—(Stuart C. McDonald.)

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

Brought up, and read the First time.

[Stuart C. McDonald]

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

[The Chair]

With this it will be convenient to discuss new clause 42—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.’

[Stuart C. McDonald]

This brings us to the hot topic of the immigration health surcharge. It is worth remembering that the health surcharge is a fairly new concept, as it was introduced in 2014. It is set at £400 per year for most applicants, with a discounted rate for students and tier 5 youth mobility workers. The Government have decided to increase the fee to £624 per person per year in October.

Those are hugely significant sums of money, as the charge has to be paid per person per year for the full duration of the visa being applied for, before that visa application has even been considered. Somebody who comes in under a typical five-year tier 2 visa will have to pay more than £3,000 up front in health charges. If they have a husband or wife and a couple of kids, that is three extra NHS surcharges, so more than £12,000 up front without even thinking about the visa fee. On a discounted rate, a student coming for three years will need to pay more than £1,400 up front. Again, that is completely separate from the visa fee. Of course, the Bill extends the scope of the immigration health surcharge to many more applicants.

A particular injustice is done to people applying for leave to remain based on long residence. They are individuals and families who are forced on to a dreadful treadmill of applications and expense. Repeatedly, they have to apply for 30 months’ leave to remain. A single parent with two kids applying under those rules would need to pay almost £4,700 in health charges, and more than £3,000 in immigration fees, for just 30 months. They have to make that same application over and over again until they get to 10 years. When they get to 10 years and are met with a settlement fee of £2,400 per person, they will already have paid £10,300 per person. For a family, £10,000 per person is impossible. Shamefully, those people are often prohibited from having access to public funds.

Those people are applying because of long residence in the UK so, realistically, in many cases, there is no other country that they can go to. The children have spent most, if not all, of their lives here. It can put families in intolerable situations where they have to choose which family member they can afford to pay the fee for. A child may end up missing out because the most immediate and pressing priority is to pay the fee for a breadwinner.

In a way, the charge represents the worst of Home Office policy making, although the Treasury is as much to blame for stripping the Home Office right down to the core and instructing it to use migrants as cash cows to fund its activities. It also illustrates the Home Office at its worst, because the policy is more about grabbing the headlines than anything else. It is illogical, unjust and counterproductive.

The excuse given is that the policy ensures that migrants contribute towards the cost of the NHS system that they may use—but in that case, why is there an NHS charge but not an education charge, especially for families with kids? Why is there not a public transport or roads charge, or a local services charge? It is essentially a fig leaf for the fact that it is simply a general tax.

It is also unjust in that it is a form of double taxation and it is a poll tax. Migrants, of course, contribute to public services through general taxation like everybody else, through income tax, council tax and indirect taxes. The NHS surcharge is totally regressive. It falls unfairly on different migrants, as a wealthy bank worker with no dependants will pay about a quarter of the sum that an NHS careworker will pay if he or she comes in with kids. Most importantly, it falls unfairly on migrants as opposed to those who are citizens or settled. Migrants pay a general tax that the rest of us do not, while at the same time paying all the other taxes that we do.

Finally, from a different perspective, this is a policy that makes the UK an eye-wateringly expensive place for people to come to work. That will now expand to EU and Swiss nationals, and to the small and medium-sized businesses that employ them. Just as businesses are struggling to keep their noses above water, the Government intend to whack them with a plethora of fees, vis-à-vis skills charges and the NHS surcharge.

As we heard last week, it is the big multinationals that are well practised in this system over time, and that have the know-how and resources. Small and medium-sized businesses will end up not only having to navigate the complex tier 2 system, but often meeting the cost of the immigration health surcharge. If a job pays around £26,000 or £27,000, nobody in their right mind is going to come if they have to pay almost half a year’s salary up front. The small hotel and the fish-processing factory will have to pay it on their behalf and, quite simply, they may well not be able to afford to do that. It will not just be one job that remains unfilled. The danger becomes that that hotel or factory simply cannot continue to function and it moves elsewhere. Workers will go where they are not being totally ripped off.

Can the Minister give me examples of other countries that operate such a system in relation to a health surcharge? If so, what is the comparable rate? All the comparisons that I have looked at show that the UK is charging people to come here at a rate that is several times that of most of our competitor countries. In short, this is unjust, it is counter-productive, it is a double poll tax and it should be axed altogether. We support the Labour amendment and new clause as far as they go, but our view is that the solution is total abolition, rather than trimming around the edges.

[Holly Lynch (Halifax) (Lab)]

It is a pleasure to serve under your chairmanship once again, Mr Stringer. I rise to speak to new clause 42. I agree with a great deal of what my friend the hon. Member for Cumbernauld, Kilsyth and Kirkintilloch East said about the immigration health surcharge.

The Labour party is undertaking a significant piece of work with colleagues in the health team about the subject, so we will not make any further comments at this stage about new clause 12. We tabled new clause 42 and we welcome the Government’s commitment to scrap the NHS surcharge for migrant health and care workers, which we feel is long overdue.

The pandemic has shown the enormous contribution of overseas workers to our health and care system. They have put their lives on the line every day to keep us safe. It has been an insult and injustice to then ask them to pay extra for the very services they help provide. The Government acknowledged it was wrong, and said they would be scrapping the fee, which was described as “appalling, immoral and monstrous” by Lord Patten, the former Conservative party chairman, on 21 May, but details have yet to be published about exactly how and when it will happen.

I am mindful that the commitment made by the Prime Minister, following the exchanges between our party leaders at the Dispatch Box, was broader than the new clause before us due to the scope of the Bill. The U-turn was made when a No. 10 Downing Street spokesman announced:

“The PM has asked the Home Office and the Department for Health and Social Care to remove NHS and care workers from the NHS surcharge as soon as possible. Work by officials is now underway on how to implement the change and full details will be announced in the coming days.”

We share the opinion of Donna Kinnair, general secretary of the Royal College of Nursing, who said it was

“a shame it took this pandemic for the government to see sense”.

We also share the opinion of the British Medical Association, the Royal College of Nursing, the Royal College of Physicians and Unison, which have written to the Prime Minister to demand clarity about his commitment. I hope that the Minister can update the Committee and, indeed, the general public on what progress the Government have made. Can he confirm that all health and care workers will be exempt from the charge on a permanent basis, including those employed in the NHS, independent settings and the social care sector; that the spouses and dependants of health and care workers will also be exempt from the charge; and that health and care staff, who have paid the charge in advance, which will be all those currently working in the NHS and social care, bearing the brunt of the pandemic, will be appropriately reimbursed?

New clause 42 intends to hold the Government to the commitments made following PMQs on 20 May. As you can imagine, Mr Stringer, international doctors and nurses, who have just had to endure the most difficult, traumatising period of their careers, were hugely relieved when the Government made the overdue decision to scrap this unfair charge for health and care workers, finally recognising the vital contribution that overseas staff make to the NHS. However, we are nearly a month on since the announcement was made and we are still awaiting the details that we were promised.

--- Later in debate ---

[Mr Robert Goodwill (Scarborough and Whitby) (Con)]

I thank the hon. Member for Halifax for making the point about the contribution that overseas workers make to our health service and the way the Government have responded to that by suspending the immigration health charge. However, I have some concerns about new clause 12 and its discriminatory nature.

For example, it would extend an exemption to Poland, which has a 0.1% black and minority ethnic population, but not to other countries, particularly Commonwealth countries, which have very close links to the UK. If one looks at the European Union as a whole, its record on inclusivity is not good. For example, all 28 commissioners are white. Following the departure of the UK from the European Union, the number of Members of the European Parliament dropped by 20% as our MEPs left Strasbourg and Brussels, and only 24 of the 705 MEPs are from black and minority ethnic groups.

[Stuart C. McDonald]

The simple problem that I face here—again—is the scope of the Bill. I would love to abolish the immigration health surcharge altogether. If that is the only problem that the right hon. Gentleman has, I urge him to get in behind the new clause and we can work to scrap it for everybody else as well.

[The Chair]

Before the right hon. Member for Scarborough and Whitby resumes, I refer him to what the new clause says. He is beginning to stray a little.

[Kevin Foster]

I thank the hon. Member for Cumbernauld, Kilsyth and Kirkintilloch East for tabling new clause 12 and the hon. Member for Halifax for tabling new clause 42, both of which relate to the immigration health charge, and for the opportunity they provide to debate this issue.

The background, for members of the Committee, is that the immigration health charge ensures that temporary migrants who come to the UK for more than six months make a fair contribution to the NHS services available to them during their stay. Income from the charge contributes to the long-term sustainability of our fantastic health service across our Union, although certain groups are exempt from the requirement to pay the charge and others benefit from a discounted rate.

The health charge is designed to help support the NHS services that we rely on throughout our lives. It raised approximately £900 million in much-needed income for the NHS from its introduction in 2015 to the end of the 2018-19 financial year—income that, I will be clear, has been shared between the four devolved health administrations in line with the Barnett formula, helping to fund the NHS across our United Kingdom.

Turning to the future, all migrants will be treated the same under our new points-based immigration system. The expectation is therefore that all nationals applying, including EEA citizens, will pay the charge if staying for temporary periods of longer than six months, unless an exemption applies. Of course, EEA citizens who are resident in the UK before the end of the transition period on 31 December 2020 are not subject to the immigration health charge. That was agreed as part of negotiations on the withdrawal agreement with the EU, which also protects the rights of UK nationals in the EU.

To touch on the point made by my right hon. Friend the Member for Scarborough and Whitby, now we have left the European Union, it would be rather hard to defend having an exemption for EEA nationals alone, given that we no longer have freedom of movement in place and will no longer members of the EU, and then applying this to the rest of the world. I respect the SNP’s point—they have made it regularly and I am sure they will make it again at regular intervals—and their principled view on this issue overall, but it would not make sense to have an exemption for one group applying under the points-based system rather than another, based on nationality alone. I appreciate the point and it will be interesting to hear what conclusions the hon. Member for Halifax comes to as part of her review.

The Government believe that new clause 42 is unnecessary. As has already been said, hon. Members will be aware that my right hon. Friend the Prime Minister has asked the Home Office and the Department of Health and Social Care to exempt NHS and social care staff from the charge. The exemption will apply to the relevant applications regardless of nationality—as I say, we are moving to a global points-based system—once that system is in place.

Officials are currently working through the detail of the exemptions; sadly, I will have to disappoint the hon. Member for Halifax and say that I cannot go into the full details today of where it will be, but hon. Members will appreciate that that is because we want to get this right and are working with our colleagues in the DHSC to do that.

There was a point made about renewals for doctors currently in the NHS. It is worth pointing out that those who are currently working in the NHS as doctors, nurses or in a number of health professions, are subject to automatic extension for a year. If they get an automatic extension for a year, that also waives the immigration health charge. It is not just the visa fee that goes, but the immigration health charge. Someone currently working for the NHS whose visa is due for renewal is getting a free year, and certainly by this time next year we will have the detailed guidance out there for them. I hope that provides some reassurance about the position as we stand here today.

I recognise the concerns about the financial impact of the health charge on people migrating here, including those who contribute to the NHS through tax and national insurance payments. The health charge provides comprehensive access to NHS services regardless of the amount of care needed during a person’s time in the UK, and includes treatment for pre-existing conditions.

The IHS not only represents excellent value when compared with the alternatives, but ensures that individuals do not need to worry about insurance or how they will pay for unexpected treatment while they are here. It compares favourably with the type of health insurance or other health care costs that those migrating to other countries might well face in order to get the same level of services that our NHS provides to all at point of need, free of charge, here.

As I said earlier, the Government is exempting NHS and care workers from the charge in recognition of the enormous contribution they make to the NHS directly. It is, however, only fair to expect people arriving in the UK to work in non-health-related roles to contribute to the range of NHS services available to them, given that they will not have the history of making contributions towards it that most long-term UK residents will have. It is also worth remembering that those who receive indefinite leave to remain—that is, settlement—are exempted from the IHS, in recognition of the long-term commitment to our United Kingdom this represents.

Finally, the Government are in the process of negotiating reciprocal healthcare arrangements with the EU, and it is important that we do not undermine the integrity of those negotiations through this Bill. I therefore invite the Members from the Scottish National party to withdraw the motion.

[Stuart C. McDonald]

I am grateful to the Minister for his response. We are essentially debating a fundamental point of principle here: we have different views about the appropriateness of this charge.

To respond to the right hon. Member for Scarborough and Whitby’s intervention, I am of course constricted in what I can table as an amendment or new clause. I would scrap the charge for everybody, not just EEA nationals, but the scope of the Bill prohibits me from tabling a broader amendment. I think that if an assessment of the NHS surcharge’s impact on black and minority ethnic people were carried out, it would make for interesting reading, but that is a debate for another day. I stand by my party’s position that this is a double tax that is completely unjustifiable, and will therefore push new clause 12 to a Division.

Question put, That the clause be read a Second time.

--- Later in debate ---

Brought up, and read the First time.

[Stuart C. McDonald]

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

[The Chair]

With this it will be convenient to discuss the following:

New clause 36—Immigration Fees—

“(1) No fees may be charged for processing applications included in subsection (3) for those persons who have lost rights of free movement under section 1 or schedule 1 beyond the cost of that processing, unless the Secretary of State has complied with the procedure in subsection (2).

(2) If the Secretary of State proposes to make changes to the rules under subsection (1), the Secretary of State must get the approval of both Houses of Parliament.

(3) The list of fees to which subsection (1) applies includes, but is not restricted to, the following—

(a) fees for applications to enter or remain in the UK;

(b) fees for sponsorship licenses;

(c) immigration health surcharges; and

(d) immigration skills charges.”

This new clause will ensure that immigration fee changes must be agreed by Parliament.

New clause 37—Citizenship Fees—

“(1) No fee may be charged for processing applications relating to the citizenship status of a person who has lost rights of free movement under section 1 or schedule 1 beyond the cost of that processing, unless the Secretary of State has complied with the procedure in subsection (2).

(2) If the Secretary of State proposes to make changes to the rules under subsection (1), the Secretary of State must get the approval of both Houses of Parliament.”

This new clause will ensure that citizenship fee changes must be agreed by Parliament.

[Stuart C. McDonald]

These new clauses continue with the broad topic of fees and expense. Although I understand why they have been grouped together, it is important that they are not treated as being about exactly the same thing; we must separate out two distinct issues.

New clauses 36 and 37 were designed to flag up the issue of how far above the cost of processing immigration and citizenship fees have been set, generally speaking, and to challenge the Minister and Committee members about why we have allowed that to happen and what the appropriate approach to setting fees should be. I accept that there will be a whole range of views on what the price of immigration applications or certain nationality applications, particularly naturalisations, should be. My own view, and that of my party, is that the prices have been set too high. This brings us back to the fact that the Home Office’s budget has been cut to smithereens in recent years by the Treasury, and it is left with no other option but to milk every penny from the immigration and citizenship system to subsidise its activities. I urge Members to wake up to the enormous burden that, at this time of crisis, the Government are about to dump on business—especially small and medium-sized enterprises—as well as individuals by expanding all these fees to companies that recruit from the EEA labour market.

It is important to distinguish new clauses 36 and 37 from new clause 13, which raises a wholly separate issue and is about righting a profound injustice. We can debate fees more generally, but there should be no scope for debate about new clause 13. I know that Members of all parties have been troubled by Government policy in this area, because, like Labour, Liberal Democrat, Democratic Ulster Unionist, Green and Plaid Cymru Members, Conservative Members also signed an early-day motion that I tabled on the topic in 2018. When I applied for a Backbench Business debate I had support from Conservative MPs as well, as I did during the debate.

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[Kevin Foster]

I am grateful to the hon. Members for Cumbernauld, Kilsyth and Kirkintilloch East and for Argyll and Bute for tabling new clauses 13, 36 and 37, which provide the Committee with the opportunity to consider fees charged in respect of applications made by those who will lose the right of free movement under the Bill for citizenship, leave to enter or remain in the United Kingdom, the immigration health surcharge, the immigration skills charge and sponsorship licences. I pay tribute to the hon. Gentlemen’s diligence in going through all the points that they wished to highlight.

It may be helpful to provide some background information for the Committee. Application fees for border, immigration and citizenship products and services have been charged for a number of years, and they play a vital role in our country’s ability to run a sustainable system. To put them into context, the current charging framework across the operation delivered £1.98 billion of income in the financial year 2018-19. That income helped to deliver the funding required to run the borders, immigration and citizenship system, and it substantially reduces the burden on UK taxpayers, as I am sure members of the public would rightly expect us to do.

The immigration health charge ensures that temporary migrants who come to the UK for more than six months make a fair contribution towards paying for the NHS services that are available to them during their stay. As was touched on earlier, income from the charge directly contributes to the long-term sustainability of our fantastic health service across our United Kingdom. Certain groups are already exempt from the requirement to pay the charge, and others benefit from a discounted rate.

The immigration skills charge is designed to incentivise employers to invest in training and upskilling the resident workforce to move away from reliance on the UK’s immigration system as an alternative to investment in staff retention, productivity, technology and automation. Income raised from the charge will be used to address skills gaps in the UK workforce, and that will be of benefit to businesses in the long term. Any fees to be charged are already approved by both Houses of Parliament.

New clause 13(1) is designed to limit the Secretary of State’s power to charge a fee for applying for British citizenship to the cost of processing. That would apply to anybody who has enjoyed free movement rights at any point. Imposing such a provision would cut across the existing statutory framework for fees and would risk undermining the funding and coherence of the whole current and future system.

Additionally, making fee provisions that are specific to certain nationalities as part of the Bill would be unfair to all users of the border, immigration and citizenship system, and it could lead the Home Office to discriminating on the basis of a person’s nationality. That clearly goes against our policy, although I accept that part of the rationale for that was to get the new clause into the scope of the Bill.

[Stuart C. McDonald]

Yes, that is absolutely the case. This does not apply even to every EU national exercising free movement; it applies to EU nationals who have the right to British citizenship through registration. It is a very specific subset, to which hugely different considerations apply; they are not in the same position as folk who have chosen to turn up and apply through naturalisation. They have a right, under an Act of Parliament, to British citizenship.

[Kevin Foster]

I re-emphasise that having this type of provision in the Bill would cut across and create a new precedent. We would be talking about someone whose right of free movement was removed by the Bill. That would create incoherence, particularly once we have left the European Union, with provisions based on rights from being in the EU—a situation that does not now exist. We have put in protections that are appropriate and proportionate.

New clause 13(2) is designed to prevent the Secretary of State from charging the child of a person who has exercised free moment rights a fee to register as a British citizen, if the child is in receipt of local authority assistance. “Local authority assistance” is too broad a term and could include those who access a range of financial and practical support measures offered by local authorities. For example, a child may receive assistance from a local authority if they attend day-care facilities while they are not yet at school. That is quite different from a child who is looked after and in the care of the local authority by way of a care order made by a court, or a voluntary agreement with the parent to accommodate the child.

It is important to remember that any child, irrespective of nationality, who is looked after by their local authority can apply for limited and indefinite leave to remain without being required to pay application fees, ensuring that no child in local authority care is unable to access leave to remain. Although many will choose to pursue British citizenship, having citizenship, as opposed to an award of indefinite leave to remain, is not essential for any individual to work, live, study or access services in the UK .

[Stuart C. McDonald]

I urge the Minister not to pursue that line, which was pursued by a previous Prime Minister and Home Secretary. No one would say to anyone in this room, “You don’t really need British citizenship. Why not just settle for indefinite leave to remain?” The Minister is missing the point—I am talking about people who have as much right to British citizenship as anyone in this room. It is not a substitute to say, “Just become a migrant in your own home country and apply for immigration status here.”

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I hope that our intention to maintain the coherence of the current and future system, and the fact that Parliament already has the opportunity to scrutinise and approve any proposed changes to immigration and nationality fee levels, the immigration skills charge and the immigration health charge, reassures the Committee. Accordingly, for all the reasons I have given, the Government will not accept the new clauses.

[Stuart C. McDonald]

I am grateful to the Minister for his comprehensive explanation, at least in so far as it related to new clauses 36 and 37. I do not agree with everything he said about the degree of scrutiny that MPs can apply on these matters, but he makes a very detailed case.

On new clause 13, I think that the Minister, probably for the first time, has not got the point that was being made. I challenge him to go back and speak to his officials about what the issue is really about. It is quite a narrow issue, in some respects, but none the less it is profound. It relates to kids, in particular—although it can be adults—who have a right to British citizenship. That is a small subset of EEA and Swiss nationals.

It is slightly bizarre that it is a Scottish National party MP who is having to stand up and champion the cause of British citizenship in this Parliament—I urge some Conservative Members to make this their cause, grab some headlines and win the day. These kids deserve it. They are as entitled to British citizenship as anybody in this room, and it is totally inappropriate for them to be priced out of that. I ask Conservative Members to think again.

I ask the Minister to speak to his officials again. Under his predecessor, I had the privilege of being able to take some kids who had been impacted to discuss the matter, along with some organisations representing them, and I would love to have that opportunity again. I feel very strongly about new clause 13 and wish to press it to a vote.

Question put, That the clause be read a Second time.

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Brought up, and read the First time.

[Stuart C. McDonald]

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

The Bill, in combination with others that have gone before, removes from some people the right to be in this country, and requires them to apply for rights under the EU settlement scheme. As hon. Members know, I object to that approach, but I acknowledge that, for the vast majority of people, it will thankfully be a fairly straightforward matter and there will be no need for legal advice. As we have seen, the scheme has reached a good number of people so far. We have also seen that these issues can be complicated. It can be complicated for someone to know whether they are required to apply or whether they have the right to be here as a UK citizen or through some form of migration status. For some, proving the right to be here in order to get settled status can be tricky, and advice will be needed on the type of evidence required or whether, for example, an old criminal conviction brings a risk in applying.

In Scotland, some will be able to get advice and assistance funding from the Scottish Legal Aid Board in order to seek some support on these issues, subject to a means test, but it is not the same in England and Wales. We have to learn the lessons of history: restrictions on access to legal aid were a contributing factor to the Windrush scandal. In itself, it would not cost much money to allow some basic legal advice to be handed out to those who need it. I very much hope the Government will consider this proposal seriously and put right the absence of legal aid.

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[Stuart C. McDonald]

I am grateful to the Minister for his explanation. By reassuring us how simple the scheme is, which it is for the vast majority of people, he also makes the case that this will not cost a great deal of money. Only a very small number of people will require legal advice, but there will be some significant issues that they will need to work through. This is fundamentally about the rule of law, which the Westminster Parliament has lost sight of in relation to how important legal aid is. For that reason, I will stick to my guns and press the new clause to a vote.

Question put, That the clause be read a Second time.

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Brought up, and read the First time.

[Stuart C. McDonald]

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

Illegal work was made a crime in its own right in the Immigration Act 2016. Lots of groups and MPs raised concerns at the time about the negative implications that would have, compared with any benefit it might bring. I think it is important always to revisit changes that this Parliament makes and to push the Government to explain what impact they really had.

I look forward to hearing from the Minister about the impact of that legislation. How many prosecutions have there been? What were the results of those prosecutions? What sorts of sentences were handed down? When the Government or law enforcement took that approach—the other side of the coin—what action was taken against those employers who were found to be employing people illegally?

As the Minister will be aware, at the time that legislation was introduced, all sorts of concerns were raised about the fact that it would strengthen the hand of exploitative employers, who would be able to have greater control over undocumented workers, essentially by having the knowledge that these individuals were committing a crime by undertaking that work and making it much less likely that they would even consider, never mind actually report to the authorities, the abuse and exploitation that they were suffering.

The offence applies to any migrant found to be working while they do not have valid legal status granting them leave to be in the UK, or when visa conditions ban them from working, such as in the case of asylum seekers, or if they work hours beyond those permitted by their visa, as may be the case for students. The penalty includes a maximum custodial sentence of six months and a fine at the statutory maximum. It also allows any wages paid to an illegal worker to be seized as the proceeds of crime.

The concerns raised in 2016 were that undocumented migrants in the UK forbidden from working illegally are forced to rely on illegal work, on charity and on the support of friends or family members, which can lead to situations of abuse and dependency, as well as instances of survival sex, for example, and destitution, homelessness and starvation. Often, agents who find work for undocumented migrants also run overcrowded, slum-like accommodation for the workers, keeping them isolated and cheaply accommodated.

Undocumented migrants who find work despite the prohibition are forced to look for work among some of the most unscrupulous and exploitative of employers. They are often underpaid or unpaid, forced to work extremely long hours, denied all workplace health and safety protections and threatened with being reported if they complain. As much of the work can be carried out cash in hand, the state sees none of the tax benefit either.

There are huge concerns here about modern slavery. I am grateful to the Catholic Bishops’ Conference on migration for its briefing, which states:

“Those perpetrating the horrors of modern slavery will seek every chance to take advantage of new migration policies. The government has a responsibility to ensure that proper safeguards are in place… the fear of prosecution currently deters people from escaping abusive employment practices or presenting themselves to the police. One particularly important step towards protecting people from exploitation would therefore be to repeal the offence of illegal working, so that no victim is at risk of being punished.”

Will the Government explain how this measure has helped in any way with what they want to achieve, and what steps they have taken to assess all the negative implications that we have been warning about and to militate against them?

[Holly Lynch]

We have one or two unanswered questions on how the new clause would work in practice. We want to ensure that we have done all our due diligence before lending it our support. We may well come back to this on Report.

The new clause gives us the opportunity to say to the Minister that we are incredibly concerned that there are people who, when free movement ends—innocent, ordinary, decent, hard-working people—for the whole raft of reasons that we have already been through in the Committee, may find that they have missed the deadline. They have then not only got a precarious migration status, but could, if they continue to wait, find themselves in the criminal justice system and criminalised. We need to address the issue now.

One example that we have mentioned is that which the BMA raised with me. Its doctors, on the frontline of fighting coronavirus, will potentially leave applying to the EU settlement scheme to the last minute for that reason. If they continue to work as a doctor, would they be criminalised if they had not done their due diligence in making sure they have their applications in, but were continuing to work in our NHS? Will the Minister reassure us that nobody will be criminalised and in our criminal justice system who absolutely does not belong there when free movement comes to an end at the end of this year?

[Kevin Foster]

To respond to my shadow, the hon. Member for Halifax, as we touched on at some length earlier, there would be grounds for reasonable excuse as to why someone had filed a late application. We will set out the criteria; it will not be an exhaustive list, because it would be impossible to come up with an exhaustive list of things that would be reasonable in many individual circumstances.

It is worth noting that the scheme has now been open for more than a year. The first group who started to apply to it were NHS workers, and there has been some very welcome work by NHS trusts and employers to make sure their employees are aware of it. For those very skilled people working in our NHS, it is worth remembering that what we are talking about is using an app on their phone with chip checker technology—it is a relatively simple and appropriate process. Certainly, any enforcement will be proportionate throughout the system, as people would expect.

New clause 15 intends to exclude all EEA citizens from the criminal offence of working illegally created by the Immigration Act 2016, as stated by the hon. Member for Cumbernauld, Kilsyth and Kirkintilloch East. I am grateful to him for the opportunity to debate this important topic. Again, as he would expect me to say, the amendment is at odds with our commitment to introduce a single global migration system. I accept that he wants to pick the issue up in the scope of the Bill, but that is a core reason why the Government believe it is right for us to have a single system.

Under the new system, everyone will be required to obtain the correct immigration status, and we will clearly distinguish between those who are here lawfully and those who are not, regardless of where their passport is from. Working illegally is a key driver of illegal migration and we are determined to tackle it. Illegal working results in businesses that do not play by the rules undercutting legitimate businesses that do. It encourages people to break our immigration laws, leaving people vulnerable to exploitation, and means that they are paid under the legal minimum wage.

The offence of illegal working applies if an individual works in the UK when they are or have reasonable cause to believe that they are disqualified from working because of their immigration status. The new rules will be clear and will set out what is expected of people as well as their entitlement. Any person who wants to work in the UK will need to have the correct status before starting a job.

EEA citizens with EU settlement scheme status will continue to enjoy the right to work and access the same services as they do now. As I have already said, we will continue to encourage applications to the EU settlement scheme before the deadline, and will implement the new points-based system that treats EEA and non-EEA citizens equally.

The new clause would discriminate in favour of EEA citizens, which is not justifiable after we have left the European Union. I appreciate the hon. Gentleman’s principled position in the provisions. I have touched on the provisions that are implemented proportionately, where they are applied. There is enforcement, particularly against employers who seek to exploit people. I hope that, in the light of those points, he will withdraw the clause, because it is not one that the Government can support.

[Stuart C. McDonald]

I am grateful to hon. Members for discussing the subject, but I do not think we really got into the meat of it. I do not think that only EEA nationals should be exempt from the criminal offence of illegal working; there are good grounds for getting rid of it altogether. I wanted to find out whether the Government have done any analysis about how it has helped in any way and, in contrast, about the unintended consequences, such as making exploitation more serious and more significant. We will perhaps return to some of those issues when we debate other aspects of the hostile environment later. I might write to the Minister to try to press again for answers to some of the questions that I raised at the outset. In the meantime, I beg to ask leave to withdraw the motion.

Clause, by leave, withdrawn.

New Clause 16

Immigration Rules Advisory Committee for Immigration Rules for EEA and Swiss nationals

‘(1) The Secretary of State must establish an Immigration Rules Advisory Committee to consider relevant Immigration Rules.

(2) In this section “relevant Immigration Rules” mean Immigration Rules that apply to persons whose right of free movement is ended by section 1 and schedule 1 of this Act.

(3) The function of the Immigration Rules Advisory Committee shall be to give advice and assistance to the Secretary of State in connection with the discharge of his functions under this Act and in particular in relation to the making of relevant Immigration Rules.

(4) The constitution of the Immigration Rules Advisory Committee shall be set out in regulations.

(5) The Secretary of State shall furnish the Immigration Rules Advisory Committee with such information as the Committee may reasonably require for the proper discharge of its functions.

(6) No relevant Immigration Rules may be made by the Secretary of State, until the Immigration Rules Advisory Committee is established.’—(Stuart C. McDonald.)

This new clause would require an advisory committee to be established in order to provide advice on immigration rules for EEA and Swiss nationals.

Brought up, and read the First time.

[Stuart C. McDonald]

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

[The Chair]

With this it will be convenient to discuss the following:

New clause 30—Procedures for amending Immigration Rules—

‘(1) The Immigration Act 1971 is amended in accordance with subsection 2.

(2) After section 3(2) insert—

“(2A) Any statement of the rules, or of any changes to the rules, which affect the rights and obligations of persons who will lose their right of freedom of movement under the provisions of the Immigration and Social Security Co-Ordination (EU Withdrawal) Act may not be made or have effect unless the Secretary of State has complied with subsections (2B) to (2F) below.

(2B) If the Secretary of State proposes to make changes to the rules under subsection (2A) above, the Secretary of State must lay before Parliament a document that—

(a) explains the proposal; and

(b) sets it out in the form of a draft order.

(2C) During the period of 60 days beginning with the day on which the document was laid under subsection (2B) (the “60-day period”), the Secretary of State may not lay before Parliament a draft order to give effect to the proposal (with or without modification).

(2D) In preparing a draft order under section (2A) above, the Secretary of State must have regard to any of the following that are made with regard to the draft order during the 60-day period—

(a) any representations; and

(b) any recommendations of a committee of either House of Parliament charged with reporting on the draft order.

(2E) When laying before Parliament a draft order to give effect to the proposal (with or without modifications), the Secretary of State must also lay a document that explains any changes made to the proposal contained in the document under subsection (2B).

(2F) In calculating the 60-day period, no account is to be taken of any time during which Parliament is dissolved or prorogued or during which either House is not adjourned for more than 4 days.”’

This new clause would amend the Immigration Act 1971 to ensure that any changes to the UK’s Immigration Rules which affect EEA or Swiss nationals must be made under the super affirmative procedure.

New clause 31—Powers to make immigration rules on specific topics—

‘(1) Powers to make Immigration Rules in relation to certain persons who have lost free movement rights under section 1 and schedule 1 must be exercised only by the relevant Secretary of State as set out in subsection (2).

(2) For the purposes of (1), the “relevant Secretary of State” is as follows—

(a) if the rules relate to students, or to family members, the Secretary of State for Education,

(b) if the rules relate to investors, workers, or the self-employed, the Secretary of State for Business, Energy and Industrial Strategy.’

[Stuart C. McDonald]

New clause 16 is about how we make immigration rules. I would like to know how many hon. Members present have ever looked at the immigration rules, at least directly for any considerable period of time, because they would drive anyone round the bend, frankly. I am not looking for raised hands but I make the point because they are vital, but we never really have an opportunity to debate their context in any holistic way or to suggest amendments to them.

Instead, hundreds of amendments to the rules are tabled each year and we barely get a look in. They contain fundamental questions about family, workers, education, business and how we run our economy, yet the Home Office keeps all of those—essentially legislation-making powers—to itself. If we look at immigration rules and immigration statutes, we find that they can be incredibly technical. Hence, we have recently seen the Law Society tasked with the job of trying to simplify them—work that will be incredibly challenging but is nevertheless essential. It is for these reasons that I have proposed new clauses 16 and 30, to change the way the rule making is done in this country, to help MPs to understand immigration law and the changes that have been made and to give them a say in what those rules are.

Last week we heard Jill Rutter from British Future refer to the work done by the Social Security Advisory Committee in providing analysis that aids MPs’ understanding of changes that have been made to social security law and flagging up things that perhaps require greater scrutiny and debate. She supported the idea of something similar operating in the field of immigration. That is why I have tabled new clause 16, as I think I did last year as well. In a similar way, a committee would analyse what the Government are doing and their proposals for changing immigration rules; it would flag up any concerns it might have and allow MPs to decide what further steps were required by way of scrutiny or challenging the Government on the proposals.

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I hope that those explanations have been of interest. I also hope that the hon. Member for Cumbernauld, Kilsyth and Kirkintilloch East will be genuinely pleased with the progress that we have made on the simplification agenda since the last Parliament—in which he discussed a very similar Bill—and with the establishment of the committee, which includes a range of stakeholders who welcome the opportunity to be involved in this work to reduce what I think we can all agree, as he touched on, has not been the most simple form of rule that we have created. We will get to a point where we can deliver a more concise level with which it is easier to engage.

[Stuart C. McDonald]

I am grateful to the Minister for his response. New clause 31 was simply an opportunity to flag up the idea that we perhaps need to ensure that we look at immigration policy with a slightly broader perspective than simple numbers. The Minister protests perhaps slightly too much about collective responsibility and the idea that other Departments would have come to the same decisions as the Home Office in relation to certain policies, but I will leave that there.

I anticipated in my remarks about new clause 30 that the Minister would speak about the need for flexibility and the ability to act quickly. I am not calling for immigration rules in Acts of Parliament or anything like that; I am just saying that anyone who follows this area of policy closely over time knows that, in essence, Parliament has no realistic role in it whatsoever, and that has to change. It will not be changed by the Bill, but it is something that we should think about in the longer term.

On new clause 16, I absolutely agree with the Minister and totally welcome the ongoing work to simplify the immigration rules; the proof will be in the pudding. That is not an easy task, and I do not envy the folk who are undertaking it, but I wish them the very best of luck. However, new clause 16 is not just about simplifying what is already there, but about understanding the changes that the Government propose as we go along and providing detailed advice to help us in our scrutiny role. As some witnesses said last week, it is every bit as appropriate to do that in this sphere of policy as it is with social security, between which pretty good parallels can be drawn. I insist on pressing new clause 16 to a vote.

Question put, That the clause be read a Second time.

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[Holly Lynch]

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

I rise to speak in support of new clause 22, tabled in the name of the shadow Home Secretary, myself and my Committee colleagues. The new clause would exempt NHS employers from having to pay the immigration skills charge.

As I have already stressed in my attempts to win support for other new clauses, the NHS workforce has historically relied on the support of professionals from across the world coming to the UK. In recent decades, that has included a supply of EU nationals. Nearly 10% of doctors, 8% of social care staff and 6% of nurses working in the UK are from EEA countries.

As things stand, NHS trusts pay the skills charge for those coming to work in the NHS from countries outside the EU and will be expected to pay those costs for those coming from EU countries after free movement ends. The immigration skills charge is effectively a skills tax paid by employers who have recruited from overseas instead of from the domestic workforce, to act as a disincentive and to promote recruitment from a local talent pool. That is fair enough, but in the context of the NHS, levelling the tax on NHS trusts is nothing short of an outrage.

If trusts cannot find clinical specialists here in the UK, they have no choice but to find them from overseas. The UK has a number of clinical skills shortages in many specialist areas and, in the absence of any Government strategy to respond to that domestically, the NHS has to hire from overseas.

We have already heard a lot about Brian Bell’s contribution to the evidence session last week. He gave the example of the nurse shortage. He said:

“often the shortage occupation list identifies a failure of the British education system to provide the people who are needed. A classic example of that is nurses. Nurses have been on the shortage occupation list since I can remember ever hearing of it. Every time they are put on the list, we hear statements along the lines of, ‘Yes, we know that they are in shortage, and we have a plan to increase the number of nurses who go through training so that we deal with the shortage in the long run.’ They are still on the shortage occupation list. We should be using the shortage occupation list to signal both to Government and to employers that there are training needs that need to be fulfilled.”––[Official Report, Immigration and Social Security Co-ordination (EU Withdrawal) Public Bill Committee, 9 June 2020; c. 24, Q49.]

An NHS trust cannot unilaterally decide to train more nurses from the domestic labour force if it is struggling to recruit; it needs Government intervention to deliver the uplift.

In the MAC’s 2019 full review of the shortage occupation list, where all doctors were added to the list, under section 4B on health occupations, the review was keen to stress that

“the rise in vacancies and concern over lack of staff has occurred under freedom of movement and during a period when many health occupations have been on the SOL. Ultimately it will take more effective workforce planning and efforts to increase the flows into health professions (and decrease flows out) to meet growing demands.”

That is a worrying thought.

We have clinical workforce shortages almost across the board in the NHS, and that has been while we have had free movement. Adopting new clause 22 would be just one small step towards protecting the NHS from the inevitable impact of free movement coming to an end with the Bill.

As constituency MPs, we all have casework relating to patients with rare medical conditions who have been on waiting lists for years to see a specialist, because there may be only one or two doctors specialising in that condition in the country. There may be only a handful in the world, so trusts are regularly looking to recruit from overseas because they seem to have no choice. The immigration skills charge punishes trusts for doing so, with the Government taking back much-needed cash from budgets in order to pay the fees. It seems grossly unfair and counterproductive, and it takes money out of frontline hospital services.

The Labour party has submitted freedom of information requests to 224 NHS hospital trusts in England, asking how much of the charges they are paying back to the Government. So far, only 45 have responded—around 21% of the trusts. To give an indication of what some hospitals are paying out, I should say that Lewisham and Greenwich NHS Trust had to pay the Government £961,000 in immigration skills charges over the past three financial years. Portsmouth Hospitals NHS Trust tells us that it paid out more than that in the 2019-20 financial year alone, with a bill for £972,000 in just 12 months; it has paid over £2 million in immigration skills charges since 2017. The Royal Free London NHS Foundation Trust has paid over £1 million in the same timeframe, and the University Hospital Southampton NHS Foundation Trust has paid £1,224,509 since 2017.

From the 21% of trusts that have responded to our FOI request, we know that nearly £13 million has been taken out of the NHS and handed back to the Government since 2017—nearly £13 million from just 21% of hospital trusts in England. That some hospitals can pay out nearly £1 million in immigration skills charges in a single year surely has to be a sign that the system is not working as intended. To repeat the point made by the MAC, this is all while people have been able to come under free movement, where fees would not have been applicable. That is about to come to an end. I urge the Minister to adopt new clause 22 to mitigate any further detrimental impact on the NHS workforce and to ensure that NHS funding stays in the NHS.

[Stuart C. McDonald]

In a sense, this debate echoes the one we had on the immigration health surcharge. I support everything that the shadow Minister has said, but I would push the Labour party to go a bit further and scrap the whole scheme.

I have nothing against the principle that employers should pay a contribution towards the cost of training and developing the skills on which businesses rely, but why should it apply only to those who recruit from abroad? That is not in any way a proxy for determining which businesses, companies and employers are not doing enough training in their own right. In fact, very often the opposite is the case: many of the businesses, companies and employers who recruit from overseas are also the ones who invest considerable sums of money in training and upskilling their workers.

However, skill shortages often arise at very short notice. For all the workforce planning that they do, and for all the training that they invest in, employers regularly have a need to recruit from abroad. As I say, it is a very poor proxy for trying to target companies that are not properly investing in training. The whole thing needs rethinking.

[Kevin Foster]

I thank the hon. Members for Halifax and for Cumbernauld, Kilsyth and Kirkintilloch East for tabling the new clauses. The objective of the immigration skills charge is to incentive UK-based employers to take a long-term view of investment and training, and it is designed to address the UK’s historical underinvestment in training and upskilling. The income raised is allocated to the Department for Education and the devolved nations to address skills and training gaps in the resident workforce.

We can all agree that immigration must be considered alongside investment in, and development of, the UK’s resident workforce, and it is only right that we provide those workers with opportunities to develop skills in order to further their careers and to contribute to the future economy. That is with particular reference to the situation we see at the moment in our country, where many people might need to find new employment opportunities due to the economic impact of covid-19.

The Committee may also wish to note that the introduction of the charge was supported by the independent Migration Advisory Committee as part of its December 2015 review of the tier 2 route.

The Migration Advisory Committee also recommended that the charge be extended and retained to cover employers of EEA citizens in the future immigration framework. In its September 2018 final report on the impact of EEA migration in the UK, the MAC said:

“We believe that extending the ISC to cover EEA citizens under any post-Brexit work-permit scheme would, on balance, be appropriate.”

It would also make no sense, now that we have left the European Union, to apply exemptions based purely on being an EEA national, as this suggests.

On new clause 22, the Government recognise the vital nature of the health and social care sector to the United Kingdom. Health and social care will be at the very heart of the UK’s new points-based immigration system, and we are doing all we can to ensure that the new system is fair, attractive and welcoming to the best and brightest overseas migrants. The new skilled worker route will be open to a broader range of roles in the sector—following the expansion of the current skills threshold—than the tier 2 general route.

As I mentioned earlier, the income for the immigration skills charge is used to address skills and training gaps in the resident workforce, including the healthcare sector. It is right, therefore, that we focus on providing UK resident workers with the opportunity to develop skills that will enable them to become the healthcare heroes of tomorrow—the revenue from the immigration skills charge does that. For those reasons, the Government are not prepared to accept the two new clauses.

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

Stuart C McDonald Excerpts

Committee stage & Committee Debate: 7th sitting: House of Commons
Thursday 18th June 2020 Public Bill Committees

[Holly Lynch]

That is one of the best interventions I have taken during the course of this Committee, and it was a welcome addition.

The Royal Association of British Dairy Farmers has estimated that in the UK, 56% of dairy farmers have employed workers from the EU; 60%––around 22,800 EU migrants––make up the workforce in poultry farming. According to the NFU, the UK’s horticulture sector is completely reliant upon seasonal migrant workers to collect crop yields: 99% of all harvesters in the UK come from Europe. All these working relationships have been forged over time due largely to the flexibility granted by freedom of movement.

The British Poultry Council has warned that the new immigration plans are likely to have a crippling impact on UK food businesses. A report of the kind outlined in new clause 24 is therefore necessary to safeguard the UK’s agriculture industry, during a time of much upheaval. As both the National Farmers Union and National Farmers Union of Scotland have stressed, fruit and vegetable picking requires a high level of manual skills, and farms can only operate efficiently when they recruit workers with this skillset.

This is the one sector where we can say that we have just been through a trial for the ending of free movement, brought about by lockdown. Migrant labour dried up due to lockdown and the Government tried to recruit from the domestic labour force. Nowhere near the required numbers joined up, fruit and veg started to rot in the fields and we were forced to very quickly get migrant labour from Europe back in on chartered flights. It is vital that the Government learn from our experiences during the crisis and develop a proactive and pragmatic agricultural policy for implementation after the transition period. New clause 24 would give us the information required to do this.

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

It is a pleasure to serve under your chairmanship again, Sir Edward. I can be relatively brief because the shadow Minister has spoken to the National Farmers Union of Scotland and represented its interests pretty well. There is real concern about shortages in the labour market for agriculture, particularly in relation to seasonal workers. Research on seasonal migrant labour from 2018 showed that in Scotland alone the number of seasonal agricultural workers required in any year is not far short of 10,000.

More recently, the NFUS and the UK farming unions have given evidence to the UK Government, demonstrating that for the whole UK around 70,000 seasonal staff are required in the horticultural sector and 13,000 seasonal staff are required in the poultry sector every year. That is obviously many times more than the number of places in the current pilot.

Challenges in recruiting seasonal workers have already been seen in recent years. In 2018, the NFUS conducted a survey of its horticultural membership in which every single respondent reported being “concerned” or “very concerned” about the impact worker shortages would have on their businesses in 2018 and beyond. Almost 60% of respondents said they were “likely” or “very likely” to downsize their business and the remaining 42% said they would have to cease current activity.

The NFUS was opposed to the end of free movement but, even while free movement was retained, farmers increasingly needed to look beyond the EU to fill such posts, with countries such as Ukraine, Russia, Belarus and Moldova already supplying a significant proportion of the workers required. The seasonal agricultural workers scheme pilot has been described as a step in the right direction, but it does not provide nearly enough permits if shortages such as those experienced in recent years are going to continue.

The NFUS is calling for a seasonal scheme that is open to both EU and non-EU workers, with capacity to provide farmers with access to returnee employers. It also calls for the scheme to be open to a wide number of labour providers and direct recruiters. Some concerns have been expressed about the expense and the somewhat laborious processes that are involved in taking advantage of the scheme.

The NFUS has also expressed concerns that the future immigration system proposed by the Government is not based on realistic expectations of the ability of the UK to fill the jobs currently carried out by migrant workers. It says that

“to maintain the productivity of the agricultural sector, immigration policy must allow recruitment on a seasonal basis for workers from both the EU and non-EU, at a non-restricted level.”

I echo what the shadow Minister, the hon. Member for Halifax, said about the SAWS scheme and how we always have to be cautious about the need to carefully protect workers against exploitation. She was right to highlight concerns raised by Focus on Labour Exploitation during the passage of the Bill last year.

To come to the rescue of the right hon. Member for Scarborough and Whitby, the gangmasters legislation was very welcome, but so too was the introduction of the director of labour market enforcement in 2016, under the Conservative Government, which may have been what he was thinking about. Those are both welcome moves, but we have a long way to go to build on the creation of those posts in ensuring that migrant workers—and workers generally—are properly protected.

One criticism of the new clause is that it is not just on seasonal workers that we need to have a report; we need a broader report on the impact on access to labour in the agricultural industry. The concerns of organisations such as the NFUS go further than seasonal work, and include the cost of sponsorship under tier 2, which it has described as

“prohibitively expensive in terms of both financial and administrative burden.”

It is fair to say that the NFUS has welcomed some of the recent developments, for example the decrease to the salary threshold that has been introduced by the Government, but it asks how non-salaried roles will fit into the points-based system; how the revised shortage occupation list will generally take account of the range of occupations that exist in agriculture; whether the Government will consider targeted routes for remote and rural areas—unfortunately, from what the Minister said the other day, it sounds as if it will be disappointed in that regard—and how the expense and bureaucracy of the system can be improved. It simply calls for close engagement as we move towards the implementation of the new system.

The new clause is sensible and will contribute to our understanding of what is going on in a future debate about labour in the agricultural sector.

--- Later in debate ---

The pilot is still operating, despite everything. The scheme operators have sponsored nearly 3,000 people to come under the scheme already this year, though not all of them have yet been able to come to the UK due to travel restrictions relating to covid-19. I am pleased to advise the Committee that we recently reopened visa applications in Kiev and Minsk, from two of the prime source countries for workers under this scheme. Unsurprisingly, following that we are already seeing a significant increase in applications, which the Home Office is processing rapidly.

[Stuart C. McDonald]

Can the Minister give us a rough outline of when a review of the pilot scheme will take place and when any sort of decision can be expected on how it will look in the future?

[Kevin Foster]

We expect to undertake that evaluation later this year and then announce the results as part of confirming the final details of the future migration scheme. If the hon. Gentleman’s next question is about whether we will take into account the unique circumstances this year, the obvious answer is yes, given the restrictions on travel. We have found that the net is going wider in trying to recruit. Just creating migration opportunity does not automatically bring workers to the United Kingdom, as we have seen with free movement—for example, it used to be common for people from parts of western Europe to come here to do this work, but now it is not. Again, migration cannot be seen as an alternative to providing attractive terms and conditions that will encourage people to wish to do the work. Our intention is to make that announcement later this year and then confirm our intentions, in good time for next year’s season.

The Department for Environment, Food and Rural Affairs already conducts quarterly seasonal labour in horticulture surveys, explicitly looking at the questions of supply and demand of seasonal labour in horticulture. I am therefore not persuaded that a further annual MAC report would significantly add to our knowledge on this matter, especially when the MAC will in future have more ability to work on matters of its own choosing, including an annual report on the migration system, in which it can choose to cover the areas suggested in the new clause. If we are giving the MAC the ability to choose what it sees as the priorities in its annual report, with debate in the House on that report, it seems strange to give it that freedom and then compel it to do a number of reports by primary legislation. With those reassurances, I hope that the hon. Member for Halifax will feel able to withdraw her new clause.

--- Later in debate ---

[Holly Lynch]

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

We have been through a great deal of this subject matter earlier in the debate on clause 2. I was grateful to the Minister for some of the clarity he was able to provide at that stage. New clause 27, however, goes that little bit further and asks the Government to produce a report on the associated rights given to citizens in the common travel area.

The aim of this proposed change is to ensure that Ministers set out in detail the scope of what has been officially referred to as the reciprocal rights of the common travel area, and to compare and contrast them with the rights that can be retained under part two of the withdrawal agreement, as provided for domestically under the EU settlement scheme. The Minister’s predecessor stated that Irish citizens do not need to apply to the EU settlement scheme because of the CTA, but since then the Government have instead suggested that individuals whose immigration status is covered by the CTA may wish to register under the EU settlement scheme. Inevitably, this has caused a degree of confusion about possible gaps between where free movement rights finish and CTA rights start.

As highlighted by the Northern Ireland Human Rights Commission, the EU SS is enshrined in law through the withdrawal agreement. Comparatively, however, the CTA is upheld essentially by a gentlemen’s agreement, the non-legally binding memorandum of understanding between the UK and Ireland on the CTA of May 2019. A report on the associated rights of the CTA would therefore be incredibly helpful to ensure that Irish citizens can receive equal rights to EEA and Swiss nationals.

We also believe that the report on the associated rights granted through the CTA would provide scope to begin to answer the pertinent questions about clause 2 raised during the evidence given by our expert witnesses. As previously discussed, while we welcome the provisions set out in clause 2 for Irish citizens, there is still outstanding ambiguity regarding the status and legality of the associated rights that are prescribed by the common travel area.

We believe that it would be incredibly welcome if the Government were to take this opportunity to clarify any ambiguity before the Bill takes effect. A report would provide unequivocal guidance on the status of Northern Irish citizens who identify solely as Irish. It would hopefully guarantee the same provisions for deportation and exclusion as those for Northern Irish citizens who identify as British. It would also clarify issues raised by the Committee on the Administration of Justice on questions relating to cross-border provisions and the right to vote in referendums. More must also be done to tackle the current problematic loophole whereby someone with an Irish passport is not granted protections on arriving in the UK, because they have travelled from a country outside the common travel area. Professor Ryan illustrated the opacity surrounding the status of acquisition of British nationality for British-born children, children born to Irish parents and Irish citizens wanting to naturalise. He stressed that this is currently an unanswered question in British citizenship law.

Finally, the report could also lead to a more sustained debate on Alison Harvey’s proposal on the right to abode, which was raised during evidence. The right to abode would grant citizens a plethora of citizenship rights, while simultaneously safeguarding people’s right to identify solely as Irish. We hope the new clause will catalyse discussions on this issue that will lead to a definitive conclusion.

[Stuart C. McDonald]

I can be very brief. I echo and support what the shadow Minister has said. I am not going to repeat what I said on clause 2; that is a welcome clause, although we have one or two concerns about the detail. What this whole debate has shown us is that, even though we are told that the common travel area pre-existed the European Union and everything is fine, in actual fact it is hard to discern what precisely is involved in the CTA and precisely what rights it confers on individuals.

My understanding from the debate we had last week is essentially that the Government propose to progress this in a rather piecemeal way, changing bits and bobs of the legislation on different subjects to ensure that Irish citizens will continue to enjoy equivalent rights in this country. Okay, that will get us to where we want to be, but it does prohibit us from having a comprehensive overview of what progress has been made and what exactly we are trying to achieve by restoring the common travel area and making sure that there is not a loss of rights because of the loss of free movement.

The new clause would be genuinely be helpful for MPs to understand what the CTA is all about, what exactly the Government are trying to achieve and what progress they are making towards that. It is a genuinely helpful suggestion.

[Kevin Foster]

I thank the hon. Member for Halifax for tabling new clause 27 because it gives me a chance briefly to outline the Government’s commitments to maintaining the common travel area arrangements, including the associated rights of British and Irish citizens in each other’s states, and the status of Irish citizens under the EU settlement scheme arrangements.

For brief background, the common travel area is an arrangement between the UK and the Republic of Ireland, as well as the Isle of Man, Guernsey and Jersey. It allows British and Irish citizens to travel freely between the UK and Ireland, and to reside in either jurisdiction. It also facilitates the enjoyment of several associated rights and privileges—in effect, by forming one area for immigration entry purposes.

As mentioned when we debated clause 2, both the UK Government and the Irish Government have committed to maintaining the CTA. The CTA is underpinned by deep-rooted historical ties, and maintaining it has been and continues to be a shared objective of both nations. Crucially, it predates the UK’s and Ireland’s membership of the European Union. It has been agreed with the EU that the UK and Ireland can continue to make arrangements between ourselves when it comes to the CTA.

Irish citizens in the UK and British citizens in Ireland will continue to have access to their CTA associated rights. Both Governments confirmed that position on 8 May 2019, when we signed a common travel area memorandum of understanding, which I have mentioned previously to the Committee. It is worth noting that that also builds on our commitments in the Belfast agreement that are part of international law.

The Government continue to work closely with the Irish Government to ensure that our citizens can access their rights as set out in the memorandum of understanding. This has been and will continue to be taken forward through bilateral instruments, and we have committed to updating domestic legislation. This is why we are proposing clause 2 of this Bill, which will ensure that Irish citizens can enter and remain in the UK without requiring permission, regardless of where they have travelled from, except in a very limited number of circumstances, which we debated under clause 2.

New clause 27 would also require the Government to publish details of the rights and benefits provided by the EU settlement scheme. The European Union (Withdrawal Agreement) Act 2020 protects the residence rights of European economic area citizens who are resident in the UK by the end of the transition period and eligible family members seeking to join a relevant EEA citizen in the UK after that time. EEA citizens and their family members can apply under the EU settlement scheme for UK immigration status, so that they can continue to work, study, and, where eligible, access benefits and services such as free NHS treatment. We continue to make every effort to ensure that people are aware of the benefits of applying to the EU settlement scheme.

The Government have always been clear that Irish citizens will not be required to do anything to protect their common travel area rights, and that is confirmed in clause 2. While Irish citizens resident in the UK by 31 December 2020 can apply to the EU settlement scheme if they wish, they do not need to. Their eligible family members can apply to the scheme, whether or not the Irish citizen has done so. However, Irish citizens resident in the UK by 31 December 2020 may wish to apply to the scheme to make it easier to prove their status in the UK in the event of their wishing to bring eligible family members to the UK in the future under the provisions of the withdrawal agreement. After the transition period, once free movement rights end, Irish citizens will continue to be able to bring family members to the UK on the same basis as a British citizen.

[Stuart C. McDonald]

Given what the Minister says, people will have to decide whether they want to apply for the EU settlement scheme, or whether they want to continue to rely on their CTA rights. They could make that decision much more easily if they knew precisely what their CTA rights would be. Can he say anything about when the Government will take forward a programme of work to ensure that Irish citizens continue to enjoy the rights that they have now? When can people can see this on the statute book, rather than just hear it being spoken about? People are describing these as rights written in the sand.

[Kevin Foster]

Clause 2 explicitly puts Irish citizens’ rights on the statute book and removes the anomaly by which an Irish citizen is treated differently depending on how they enter the country—whether they arrive on a flight from Dublin or a flight from Brussels, whether under EEA free movement or CTA rights. That difference is removed completely by clause 2; it makes it clear that the same position applies, however an Irish citizen arrives in the United Kingdom.

I am very much a supporter of the provisions of the Belfast agreement, under which a person can identify as British, Irish or both. Effectively, in the United Kingdom, the person will be treated as if they were a British citizen, in terms of their rights, including their right to live here, and the services they can access. There is a very tiny number of exceptions. On this Committee, we have all struggled, as have the witnesses, to find in recent times and under modern legislation an example of an Irish citizen being deported from the United Kingdom. The position outlined in a written statement in 2007—and yes, I know who was in government in 2007—still stands, and we have not had any representations from the Irish Government on changing that. I suspect that if we looked to behave in an unreasonable way towards an Irish citizen, the Irish Government would be very clear in their response.

[Stuart C. McDonald]

The Minister is obviously doing his bit by putting clause 2 into the Bill, but what I am really asking—I suspect that he does not have the answer today—is what other work is under way across Government to make sure that Irish citizens have rights on housing, health and everything else on exactly the same basis as before, and to make sure that the loss of free movement rights does not mean that they will be in a worse position. Some sort of timetable on what is going on, and how the change is being processed, would be useful for lots of citizens.

[Kevin Foster]

I thank the hon. Member for quite a constructive intervention. He obviously will appreciate that those arriving after the transition period would not have free movement rights, but those arriving before are covered by the withdrawal agreement. I am more than happy to get a letter to him setting out how we will make sure of the position that he mentions. I suspect that his concern is that when an Irish citizen is in the United Kingdom, talking to a person at a Department for Work and Pensions office, or a landlord, and presents them with an Irish passport, it should be understood inherently that it has exactly the same status in terms of renting, or accessing a service or employment, as a British passport, particularly given the different commentary. I am more than happy to set out in writing to the Committee the work that will be done on that point.

In summary, the Government have already made clear the rights available to individuals under the common travel area and the EU settlement scheme following the end of free movement, and we will continue to do so. I therefore respectfully ask the hon. Member for Halifax not to press the new clause for the reasons I have outlined.

--- Later in debate ---

In conclusion, I hope the Minister will agree that ongoing monitoring and reporting to Parliament on the state of the higher education sector in relation to staff, students and young people on exchange programmes in the wake of this Bill will be vital. I commend my new clause to the Committee.

[Stuart C. McDonald]

Again, I fully support and echo much of what the hon. Member for Stretford and Urmston has said. If anything, I would argue that the review requested in the new clause should be slightly broader and encompass not only student recruitment but staff recruitment, because that is an important issue for our universities. I also suggest that the report needs an urgent timeframe, because the clock is ticking down to a new academic year and a new recruitment period, but she made all sorts of valuable points.

Some changes made to the Government’s original White Paper have improved matters, such as the reduction in the salary and skills thresholds, but there remain lots of challenges, and of course just now universities are under immense pressure in dealing with the coronavirus pandemic and its fallout. I have spoken with Universities Scotland about the review suggested in the new clause, and what follow are some of the issues it raised. What steps are the Minister and the Government taking to get the visa system working again—lots of visa processing centres remain closed—and how can alternative measures be put in place to ensure we can recruit students at the moment?

What steps will the Government take to ensure that students can start courses online with confidence—for example, by extending the window from three months to six months so that people can have extra time to arrive in the UK from when their visa becomes valid? What steps are being taken to ensure that online study does not disqualify students from the graduate route, and will the Minister consider increasing the graduate route length to three or four years and promoting it intensively, because as we he heard awareness rates are still very low?

Finally, the report should also look at whether consideration has been given to waiving tier-4 visa fees for one year only? In the longer run, what steps are being taken to ensure that our visa fees are competitive and allow us to compete with countries such as Canada and Australia, which have such strong offers in terms of fees and post-study work. These are all things the Government should think about as part of the report, and we think the new clause would be a welcome addition to the Bill.

[Kevin Foster]

The new clause provides the Committee with a useful opportunity to consider the important issue of international students in the UK, and I am grateful to hon. Members for tabling it.

I want to start by picking up on the point made about Erasmus by the hon. Member for Stretford and Urmston. My constituency sees a large number of Erasmus students, and we very much welcome it. At the moment, the scope and content of EU programmes post 2020, including Erasmus, is being negotiated within the EU institutions and has not been finalised. The Government have made it clear that the UK is ready to consider participation in certain EU programmes, in particular Erasmus+, once the EU has agreed the baseline in its 2021-27 multiannual financial framework. Given that that has not yet been agreed, we are preparing for every eventuality and considering a wide range of options with regard to the future of international exchange and collaboration in education and training if it is not possible to secure a deal on Erasmus+. I want to give reassurance that the will is there. Once the EU has agreed its baseline, we will look to continue to be part of that valuable programme.

The Government strongly welcome international students, as I know Members across the Committee do. We see the academic and creative energy they bring to communities across our Union, including Belfast, Glasgow, Cardiff, Birmingham and Exeter. The Committee will be pleased to hear that the UK is one of the world’s leading destinations for international education, and hundreds of thousands of talented students choose to come to the UK’s world-leading institutions.

The Higher Education Statistics Agency has found that the total number of international students in higher education in the UK increased by 10% between 2014-15 and 2018-19, with the latest data suggesting that around 140,000 EU domiciled and 340,000 non-EU domiciled students enrolled in higher education institutions in the UK. The most recent set of immigration statistics show some very welcome growth in the number of people studying at our institutions from China and India in particular.

I want to reiterate that the Government place no limit on the number of international students who can come to study in the UK and have no intention ever to introduce any such limit in future under the new migration system. Indeed, as set out in the “International Education Strategy”, published last year, it is the Government’s ambition to increase the number of international higher education students studying in the UK to 600,000 by 2030. However, I recognise that we must not stand still if we are to continue to be a leading destination for international students. The Minister of State for Universities recently announced a new international education champion, Sir Steve Smith, to spearhead the UK’s efforts in the international student market. The Minister and I liaise regularly about the role that the migration system can play in facilitating that.

In summer 2021, we will launch a new graduate route, which will enable international students who have successfully completed their degree to remain in the UK for two years post study to work or look for work at any level, in order to kick-start their career. That will ensure that the UK continues to attract the brightest and the best and that our offer to prospective international students remains competitive internationally. I know that this policy change has significant cross-party support. It was even one of the first requests made by an SNP MP in a recent Opposition day debate on migration, in which my hon. Friend the Member for Moray and I took part, and I am pleased that it has been welcomed by the education sector.

I want to respond to the points made about eligibility for this route. We have published guidance, which confirms that those having to study overseas by distance learning due to the current circumstances will still be eligible for the graduate route. I do not blame Opposition Members for not having seen it, because it came out this morning, so I do not make that point to have a go at them. That followed discussions that the Minister of State for Universities and I had.

We will not penalise people for circumstances that are beyond their control, and we are working to finalise some of the details. Particularly for those on a one-year course—who will predominantly be postgraduate students, where we probably have a record of compliance and they have a very high skill level—we will be working to find that they have spent some time in the United Kingdom. For those starting three-year courses, we will not hold against them an absence from the United Kingdom caused by having to do distance learning, as a general principle.

We are looking at a range of other measures we can take to facilitate applications for tier 4, particularly from those who are applying to a new course having already been in the United Kingdom, many of whom are postgraduates or have done foundation courses. We have had strong representations on the extension to six months. It is clear that that will not be a huge advantage to someone looking to start a course in late September or October, given that it is now mid-June, but we are looking at where we can make some appropriate changes to the migration rules to reflect the unique situation. We will of course continue to work with Universities UK to ensure that those changes are appropriate. As I say, we have today published some guidance, which I am sure Committee members will find interesting. I will make sure that a link to it, or perhaps a copy of it, is sent round, to make one or two of these points clear.

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[Holly Lynch]

I am grateful to the Minister for that response. At this stage, we will continue to follow the negotiations on the additional reciprocal arrangements, and on that note I beg to ask leave to withdraw new clause 29.

Clause, by leave, withdrawn.

New Clause 30

Procedures for amending Immigration Rules

“(1) The Immigration Act 1971 is amended in accordance with subsection 2.

(2) After section 3(2) insert—

“(2A) Any statement of the rules, or of any changes to the rules, which affect the rights and obligations of persons who will lose their right of freedom of movement under the provisions of the Immigration and Social Security Co-Ordination (EU Withdrawal) Act may not be made or have effect unless the Secretary of State has complied with subsections (2B) to (2F) below.

(2B) If the Secretary of State proposes to make changes to the rules under subsection (2A) above, the Secretary of State must lay before Parliament a document that—

(a) explains the proposal; and

(b) sets it out in the form of a draft order.

(2C) During the period of 60 days beginning with the day on which the document was laid under subsection (2B) (the “60-day period”), the Secretary of State may not lay before Parliament a draft order to give effect to the proposal (with or without modification).

(2D) In preparing a draft order under section (2A) above, the Secretary of State must have regard to any of the following that are made with regard to the draft order during the 60-day period—

(a) any representations; and

(b) any recommendations of a committee of either House of Parliament charged with reporting on the draft order.

(2E) When laying before Parliament a draft order to give effect to the proposal (with or without modifications), the Secretary of State must also lay a document that explains any changes made to the proposal contained in the document under subsection (2B).

(2F) In calculating the 60-day period, no account is to be taken of any time during which Parliament is dissolved or prorogued or during which either House is not adjourned for more than 4 days.”—(Stuart C. McDonald.)

This new clause would amend the Immigration Act 1971 to ensure that any changes to the UK’s Immigration Rules which affect EEA or Swiss nationals must be made under the super affirmative procedure.

Question put, That the clause be read a Second time.

Question negatived.

New Clause 32

Annual report on labour market

“Within 12 months of this Act coming into force, and every 12 months thereafter, the Secretary of State must lay a report before Parliament setting out how any changes made to the Immigration Rules for EEA and Swiss nationals have affected the extent to which UK employers have adequate access to labour.”—(Stuart C. McDonald.)

This new clause would mean the Secretary of State must lay a report before Parliament on how changes to Immigration Rules for EEA and Swiss nationals are affecting access to labour.

Brought up, and read the First time.

[Stuart C. McDonald]

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

I can be relatively brief, since we covered much of this territory in earlier discussions, but it is a useful opportunity to push the Minister on a few issues. What progress can he report on raising awareness of the new tier-2 procedures in which so many small and medium-sized enterprises will have to participate, and what support is being rolled out for those businesses to help them to navigate the new system? What change has he noticed in the number of applications for tier-2 sponsorship licences, and what work is under way to streamline the system, which we have spoken about at length previously?

I suspect the Minister’s answer to the new clause will be that there is to be an annual MAC report. If so, can we ask that it is laid before Parliament and then have a debate on it? The Home Affairs Committee spoke about an annual debate on migration in a repot two or three years ago in trying to build a consensus on migration. It looked at how other countries developed immigration policy, and one issue that featured heavily in other jurisdictions was, at the very least, an annual debate on immigration policy generally.

We are talking about seismic changes to the way in which many businesses will go about recruiting and accessing the labour market, and the number of industry bodies that have come to me to express concerns is unbelievable—industry bodies I did not even know existed until they got in touch—across food and drink, agriculture, tourism and hospitality, fishing, manufacturing, engineering, logistics, financial services, social care, education, and many more. There is significant apprehension, and it is not because any of these industries want to exploit low wages; it is their realistic assessment that they are struggling already to access the labour they need in the UK at a price they can afford and which keeps them competitive. Now they are going to struggle to access labour from abroad, because of immigration rules.

--- Later in debate ---

[Kevin Foster]

I thank the shadow spokespeople for their comments and the constructive way in which they have put forward the new clause, which hits on an important point. Certainly neither I nor anyone else in government wants businesses to fail due to an unavailability of labour, although, sadly, as many outside this room would note, the impact of covid-19 on our economy means that not many people would see that as a likely issue over the coming period, for all too obvious reasons.

It is precisely for that reason that the Government are bringing forward the new points-based immigration system. It will be a single global system that will treat everyone alike and will allow people to come to the UK on the basis of their skills and the contribution they can make, not their nationality or where their passport is from. It will be a fair system, and we are introducing a number of important elements, such as reducing the skills and salary threshold below those in the tier 2 system, and abolishing the cap and resident labour market test, which will remove a lot of bureaucracy for employers engaging with the system.

The system will also be flexible. We are making it points-based, precisely so that we can facilitate the entry of those with the greatest skills or those who are coming to fill jobs where there is the greatest need. The system will be kept under careful review.

I do not think anyone would disagree that it is profoundly important to look at the effect that immigration is having on the labour market. That means looking at the situation for employers and the impact on UK workers seeking employment. The new clause, focusing as it does solely on employers, would give only one side of the story, leaving workers’ interests at a disadvantage. I also do not believe that the Government are best placed to look at this issue; this type of request is why the independent Migration Advisory Committee exists and is commissioned to produce expert, independent reports on the interplay between immigration and the labour market. I do not believe that what it produces could be further improved by another report from the Government. As part of its work, the MAC already looks at which occupations in the UK are currently experiencing a shortage of workers and, crucially, where it thinks it would be beneficial to fill vacancies through immigration. We maintain shortage occupation lists to recognise that.

The work of the MAC and the reports it produces go beyond the narrow scope of the work proposed by the new clause. The MAC looks at the whole immigration system, rather than just changes to the immigration rules. The MAC also looks at the impact of all migration, rather than limiting itself to EEA and Swiss migration, as the new clause seeks to do, although I accept that the wording is probably because of the scope of the Bill. The future immigration system will be a global one, where an EEA citizen has the same basic rights to migrate to the UK as someone, for example, from the Commonwealth.

The new clause would simply result in duplication of work already being undertaken by the pre-eminent labour market economists and migration specialists of the MAC. Parliament regularly debates the MAC’s reports. I hope that the MAC’s annual reports will help to inform regular, structured debates on migration—something to which Opposition Members alluded—allowing us to take a more considered view, rather than simply reacting to particular proposals or events. I have outlined the role that the MAC will play. I hope that the hon. Member for Cumbernauld, Kilsyth and Kirkintilloch East will feel able to withdraw his new clause.

[Stuart C. McDonald]

I am grateful to the Minister, and I beg to ask leave to withdraw the clause.

Clause, by leave, withdrawn.

New Clause 41

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 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.).’—(Dame Diana Johnson.)

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.

Brought up, and read the First time.

[Dame Diana Johnson]

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

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

Stuart C McDonald Excerpts

Committee stage & Committee Debate: 8th sitting: House of Commons
Thursday 18th June 2020 Public Bill Committees

[Kevin Foster]

Absolutely. Once someone has their status under the European settlement scheme, they join another—why, we have had over 3 million decisions taken on granting status. That will be part of how our border system will operate in future. One of the lessons learned from the past is this—status was granted under an Act of Parliament, but then in several decades’ time it has to be explained to someone how their status was under a different approach from how status is granted to those who are in the same cohort, in terms of nationality and citizenship. That is not helpful to anyone. That is one of the lessons learned, of course, from the experience of the Windrush generation. That Act of Parliament was in 1971. The status was granted on 1 January 1973 and the issues then started to be encountered 30 years later, and not just since 2010— the first case mentioned on the front of Windrush lessons learned review is from 2009. Again, it is about how those issues are created.

A declaratory scheme as proposed in new clauses 41 and 58, under which those covered automatically acquire UK immigration status, would cause confusion and potential difficulties for these vulnerable young people in future years, with their having no solid evidence of their lawful status here. They will need evidence of their status when they come to seek employment, or access to benefits and services to which they are entitled. A declaratory system would leave them without that evidence, struggling to prove their rights and entitlements over decades to come.

I listened carefully to the comments made by the hon. Member for Kingston upon Hull North, in which she outlined the process local authorities could go through to list the children and send those lists to the Home Office. I thought, “If local authorities are going to go through all this, then the logical thing for them to do is make the applications that are required under the EU settlement scheme, and ensure the children they are listing have the status they need.” It is hard to see what the benefit to councils would be if we introduced a different process that did not produce a better outcome. If that is what we are going to ask people to do—arrange a working identifier—the next stage is to ask them to make quite a simple application to the European settlement scheme to get the status that child deserves.

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

The Minister must accept that a declaratory system does not leave people without a means of proving their status. They have every incentive to apply to the settlement scheme to get the document they need to access the services the Minister has referred to, and would have the facility to do so.

[Kevin Foster]

Again—here we go—this would mean that someone who had a status could not be distinguished from someone who did not have a status, and would then have to make an application. We have been clear that we cannot allow people to have a status without going through the process, but that we have some generous provisions in place. Similarly, physical documents that are decades old, that date from when someone is a child, are unlikely to be particularly convincing proof in many instances. That is why we need to move towards a digital system that is a permanent record, and if the children are being identified—as Opposition Members are suggesting—the next stage is to make that application, make it simple, and get their status secured. That means the children are then secure for the rest of their life, which is a better outcome.

Fundamentally, changing a system that is working well overall would have the exact opposite effect to that which the new clauses appear intended to achieve, leading to confusion and uncertainty. We have also made it clear that where a person eligible for status under the scheme has reasonable grounds for missing the deadline—for example, if their council did not apply to the EU settlement scheme on their behalf—they will be given a further opportunity to apply. We will ensure that individuals who have missed the deadline through no fault of their own can still obtain lawful status in the UK, which I suggest is a far better response to the concerns expressed by Opposition Members than the new clauses they are proposing. That is why the Government will not accept them.

[Dame Diana Johnson]

I am disappointed by the Minister’s response to new clause 41. It is also disappointing that the Minister is not able to update the Committee with some information, recognising that that information about numbers may be changing over time. This is a matter that will not go away, and rather than test the opinion of the Committee today, I may wish to return to it on Report. I therefore beg leave to withdraw the motion.

Clause, by leave, withdrawn.

New Clause 45

Immigration: no recourse to public funds

“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, until such time as may be specified in a resolution passed by each House of Parliament.”—(Stuart C. McDonald.)

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

Brought up, and read the First time.

[Stuart C. McDonald]

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

[The Chair]

With this it will be convenient to discuss the following:

New clause 56—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 recourse to public funds.

New clause 59—Analysis of exemption from no recourse to public funds condition—

“(1) The Secretary State must produce a report on the impact of no recourse to public funds conditions for those who meet the criteria in subsection (2).

(2) The report under subsection (1) must include the impact on EEA and Swiss nationals—

(a) with children;

(b) with pre-settled status; and

(c) who are victims of domestic abuse.

(3) For the purposes of this section, a public fund is defined as any of the following:

(a) attendance allowance;

(b) carer’s allowance;

(c) child benefit;

(d) child tax credit;

(e) council tax benefit;

(f) council tax reduction;

(g) disability living allowance;

(h) discretionary support payments by local authorities or the devolved administrations in Scotland and Northern Ireland which replace the discretionary social fund;

(i) housing and homelessness assistance;

(j) housing benefit;

(k) income-based jobseeker’s allowance;

(l) income related employment and support allowance (ESA);

(m) income support;

(n) personal independence payment;

(o) severe disablement allowance;

(p) social fund payment;

(q) state pension credit;

(r) universal credit;

(s) working tax credit; and

(t) Immigration Health Surcharge (IHS).

(4) For the purposes of this section—

“domestic abuse” has the same meaning as in section 1 of the Domestic Abuse Act 2020;

“victim” includes the dependent child of a person who is a victim of domestic abuse.”

This new clause will require the Government to consider the impact of no recourse to public funds exemption.

New clause 62—Recourse to public funds: EEA and Swiss nationals with dependants—

“(1) EEA and Swiss nationals with dependants under the age of 18 must be exempt from any no recourse to public funds condition that would otherwise be placed on them under Immigration Rules.

(2) For the purposes of this section, a public fund is defined as any of the following—

(a) attendance allowance;

(b) carer’s allowance;

(c) child benefit;

(d) child tax credit;

(e) council tax benefit;

(f) council tax reduction;

(g) disability living allowance;

(h) discretionary support payments by local authorities or the devolved administrations in Scotland and Northern Ireland which replace the discretionary social fund;

(i) housing and homelessness assistance;

(j) housing benefit;

(k) income-based jobseeker’s allowance;

(l) income related employment and support allowance (ESA);

(m) income support;

(n) personal independence payment;

(o) severe disablement allowance;

(p) social fund payment;

(q) state pension credit;

(r) universal credit;

(s) working tax credit; or

(t) Immigration Health Surcharge (IHS).”

This new clause would allow EEA nationals and Swiss nationals with children under the age of 18 to access public funds.

[Stuart C. McDonald]

It is a pleasure to serve under your chairmanship, Mr Stringer. In tabling new clauses 45 and 56, my party wants to set out our opposition to how the no recourse to public funds regime is working, both in general and specifically during the current covid crisis. We think it is having some drastic effects, and therefore refuse to extend it to EEA nationals during the current public health crisis, or indeed more generally. Of course, we urge the Government to go further by also disapplying NRPF rules in relation to other migrants.

Because of this Bill, any EEA migrants coming to the UK under the new system will face the same problems as those coming from outside the EEA. They will be prohibited from accessing public funds until they are granted permanent residence, something that will take five years for some migrants and 10 for others, if it is granted at all. No recourse to public funds conditions will be applied to the family members of UK citizens and settled persons, as well as those to whom we have extended an invitation to come on a work visa. That means that individuals, families and children are prevented from accessing most in-work and out-of-work benefits, including child benefit, tax credits, universal credit, income-related employment support allowance, income support, local welfare assistance schemes, housing benefit and social security.

[Mr Goodwill]

Does the hon. Gentleman agree that the term “no recourse to public funds” is slightly misleading, because there are a number of benefits that people are entitled to, including the furlough scheme, should they be entitled to that?

[Stuart C. McDonald]

It is welcome that the furlough scheme is extended to these individuals, but it is nowhere near enough. I will come to specific problems in relation to covid later in my short speech.

In short, if these new clauses are not agreed, many thousands more people who are here because they are family members or because they are wanted for their work will be put at risk of poverty and insecurity.

Those who come here with limited leave visas certainly do not expect to have to rely on public funds, but as we have seen all too well in recent months, unforeseeable events that are completely beyond their control can have a dramatic impact on their capacity to sustain themselves and their family. I am talking about coronavirus, but the ability of individuals to support themselves can be affected for reasons that are many and varied. It could be economics, illness within the family, relationship breakdown, accidents or the death of a loved one.

We have allowed and welcomed people who come to work here or to join their families. There is no reason or justification for denying them the safety net and security that we regard as essential for everybody else.

Included in those impacted by the NRPF rules are parents who are working hard in roles that are absolutely crucial at this time, including care workers, NHS staff, cleaners and people involved in food preparation. Some are working extraordinarily long hours but still cannot access even limited top-up benefits to help them meet the needs of their children.

Thanks to the Children’s Society, we know that many of the families detrimentally impacted by the rules are headed by single mothers, often from black, Asian and minority ethnic backgrounds. There are also significant numbers of families that include children with special educational needs who require additional help from supporting agencies.

It is also important to note that many of the children who will be victims of the NRPF rules will have been born and brought up here. I link back to my amendment on fees for registering British citizens; some of these children would be entitled to British citizenship, but cannot access it, either because they are not aware of it or because they are priced out of it. There will even be British citizens among those children, who are being punished because their parents’ immigration status prevents them from accessing support.

The disastrous impacts of all the rules are well established. People who are prohibited from accessing public funds are clearly at risk of destitution, with no access to the social safety net. The impact on children can be particularly devastating, in so far as deprivation is clearly detrimental to their long-term growth and development. As the Children’s Society points out, living in poverty even for short periods of time has significant detrimental effects on children’s outcomes, both in childhood and in later life, affecting their school attainment, cognitive and behavioural development, and physical and mental health.

Recently, the High Court found no recourse to public funds policies to be unlawful, holding that the relevant immigration rules and casework instructions did not adequately account for human rights obligations. That case was brought by an eight-year-old boy whose mother was subject to NRPF conditions and on the 10-year route to settlement. She was a carer for mentally disabled clients, before the imposition of the NRPF conditions led her and her son to experience periods of destitution. They moved house repeatedly, with the boy having been moved five times before the age of eight, and at one point they were street homeless. The court found that the Home Secretary must not impose or should lift NRPF conditions when it is clear that a person is at risk of imminent destitution in the absence of public funds, rather than waiting for that destitution to take place. As legislators, we should be doing better than that; we should avoid families being at risk of destitution at all. We invite families and individuals to come to undertake vital work here, and we should extend the safety net that we enjoy ourselves.

As in other areas, the Home Office sometimes attempts to pass the buck to local authorities and argues that support under legislation relating to children should mean a safety net of sorts is provided, but the number able to access such support is extremely limited, and the support is also incredibly restricted—sometimes as little as £3 per day per child. As I understand it, children are not even allowed to access free school meals.

The Home Office will also point out that, on application, NRPF conditions can be lifted, but those on the frontline say that such applications are incredibly difficult to have success with and have to be repeated multiple times. Those who apply who are currently on five-year routes to settlement will instead be placed on a 10-year route to settlement, with none of their residence to date being counted towards that target. The price of access to that safety net is insecurity.

[Mr Goodwill]

Does the hon. Gentleman not accept that benefits that people are entitled to by virtue of their paying national insurance contributions are able to be paid, including important ones such as contribution-based jobseeker’s allowance, incapacity benefit and, of course, retirement pension?

[Stuart C. McDonald]

I do not think I have denied that certain benefits are still available to people, but none of that explains or resolves all the challenges that I outlined. For all these reasons, we believe that the no recourse to public funds rule should be got rid of altogether.

That is all the more urgent in relation to the covid-19 crisis, for which the implications of these policies are absolutely counterproductive. People who are prohibited from accessing public funds will feel compelled to continue to work, even when doing so is not safe for them or their families. As I said, their inclusion in the furlough scheme is welcome, but someone who is subject to NRPF and is dismissed from their job will obviously not have access to the furlough scheme, and nor can they claim universal credit. They are at real risk of destitution.

We all watched the Prime Minister at the Liaison Committee recently. He was questioned, quite memorably, by the Chair of the Work and Pensions Committee, who provided an example to the Prime Minister of parents who had lived in the UK for at least 15 years and who had two children, aged 11 and 13. They found themselves facing destitution for reasons entirely beyond their control. It was telling that the Prime Minister could not explain why the family was not able to access support. Of course, they should be able to access support, and these new clauses would allow that to happen.

[Kate Green]

It is a pleasure to serve under your chairmanship, Mr Stringer. I rise to speak to new clause 59, tabled in my name and those of my hon. Friends. The new clause would require the Secretary of State to produce an analysis of the impact of the no recourse to public funds condition on EEA and Swiss nationals, including those with children, those with pre-settled status and those who are victims of domestic abuse.

As we heard from the hon. Member for Cumbernauld, Kilsyth and Kirkintilloch East, no recourse to public funds conditions can prevent access to some welfare benefits, to free school meals and to other support for working families who may have been paying tax. That may include families with children, including British-born children, and other vulnerable people. As we heard, application can be made to lift the condition, but it is necessary to reapply at each visa renewal, and the condition can be reinstated.

The impact of no recourse to public funds conditions on the poorest households has been magnified, as the hon. Gentleman said, by the covid crisis. The Greater Manchester Immigration Aid Unit reports that applications to lift the condition are subject to considerable delay; that the process for applying is overcomplicated, and that is exacerbated for those who struggle to make digital applications; that the evidential requirements are high and unnecessarily onerous; and, as a result, that decisions are still awaited weeks after applications have been submitted.

This makes it harder for those subject to the condition to achieve social distancing or to self-isolate if they need to. They are more likely to be living in overcrowded accommodation, with many building up rent arrears. Even though they may, as the Minister rightly says, be eligible for the Government’s furlough scheme, they are under considerable pressure to keep working in many cases. Often, their children are not in school and they cannot access free childcare, forcing them to rely on friends and family to provide that care, meaning that children are moving between households, further increasing the covid risk.

Meanwhile, Safety4Sisters tells me that local authority housing services in Greater Manchester have been turning women subject to no recourse to public funds conditions away from the emergency homeless accommodation set up during the crisis, even though that should not happen. This has resulted in at least one vulnerable woman becoming street homeless in Manchester in recent weeks, until she was found by the police and taken to safety.

Given these shocking circumstances, Labour has called for the no recourse to public funds condition to be suspended during the covid emergency. As we heard, new clause 45, proposed by the hon. Member for Cumbernauld, Kilsyth and Kirkintilloch East, would give effect to such a suspension, while ensuring that, if Parliament wishes to reinstate the regime as soon as the crisis ends, it can do so. Suspension of the condition now would not only provide vital relief to families who have had their livelihoods catastrophically affected by covid, but would give the Government the opportunity to give full consideration to the impact of the no recourse to public funds condition more broadly and to future policy.

As we know, and as we have just heard, the Prime Minister was apparently surprised to hear about the effects of the condition during his recent session with the Liaison Committee, and he was right to say that

“people who have worked hard for this country, who live and work here, should have support”.

Sadly, just a week later, on 3 June, in his response in Prime Minister’s questions to my hon. Friend the Member for Sheffield Central (Paul Blomfield), he appeared to backtrack on his commitment to see what could be done to help them.

It is, of course, welcome that the Government have now issued guidance to give effect to the judgment in the case described by the hon. Member for Cumbernauld, Kilsyth and Kirkintilloch East, but this still leaves many potentially vulnerable people at risk of being subject to the condition. That includes those EU nationals who are here now but are able to secure only pre-settled status. They will not meet the habitual residence test and will be ineligible for non-contributory benefits; that includes disabled people, who will not be able to claim universal credit. I am sure my hon. Friend the Member for Kingston upon Hull North will speak to her new clause 62 and the damaging effect the condition could have on EEA and Swiss national families with children.

Given the potential impact on vulnerable groups, I hope the Minister will accept the suggestion of an analysis of the impact of the no recourse to public funds condition in the constructive spirit in which it is offered. If the Prime Minister’s commitment to review the application still holds, and if, as is reported, the Government intend to bring forward a further immigration Bill in the near future, they could take that opportunity to legislate to make any changes Parliament then deems necessary. The evidence base that such a review could supply would also be a useful prerequisite for a decision on the broader proposals set out in new clause 56 by the hon. Member for Cumbernauld, Kilsyth and Kirkintilloch East, were the Government minded to consider them. I commend our new clause to the Committee.

--- Later in debate ---

[Kevin Foster]

It is probably worth saying that many European welfare schemes are based on slightly different premises—for example, social insurance schemes. As we reflected on when we talked about healthcare costs, people accessing healthcare services in other European countries may be required to pay for things that the NHS provides free at the point of need to UK nationals. It is hard to give different examples, but there are protections in the withdrawal agreement for UK citizens living in the EU before the end of the transition period. To be fair, many countries have been good in wanting proactively to support UK citizens living in their nation. I cannot give a list of each countries’ individual migration system off the top of my head, but it is probably safe to say that it is relatively common around the world for those who have newly arrived in a country to be unlikely to be able to access and qualify for a range of welfare provisions.

EEA citizens who apply under the EU settlement scheme secure their rights in UK law, so they can access benefits and services on at least the same basis as before they were granted that status. The Government have provided guidance for local authorities to enable them to support vulnerable EEA citizens in making an application under the scheme. The Government have also made available to local authorities and charities a further £8 million, in addition to the £9 million announced last year, to help them to assist vulnerable EEA citizens in making applications.

New clause 56 would risk impacting the Government’s ability to make regulations under the power in clause 4, the importance of which I have set out previously in Committee: to ensure that our laws operate coherently once free movement ends; to align the immigration treatment of newly arriving EEA citizens and non-EEA citizens from 1 January 2021; and to make relevant savings and transitional provisions for resident EEA citizens that cannot be made under powers in the 2020 Act.

New clause 59 would require the Government to publish a report on the impact of the no recourse to public funds condition on certain groups of EEA nationals. This is not necessary; the Government are already required to consider the impact of policies on all those to whom they apply, not just certain groups.

On new clause 62, I share the interest of the hon. Member for Kingston upon Hull North in ensuring the wellbeing of children, but I do not believe the new clause is necessary. Immigration law already provides that local authorities may intervene where required, regardless of the immigration status or nationality of the child or parent. The safeguards in place for the vulnerable will be retained, but it is only right that the future immigration system continues to play a part in ensuring that taxpayers’ funds are protected for the residents of the UK, whose money it is, and in assuring them that immigration continues to benefit the country as a whole and is not based on creating new costs and burdens for public resources.

I understand and appreciate the intentions behind new clause 62, but it would provide EEA citizens with greater access to benefits in the UK than they currently have under UK law. Generally speaking, under EU free movement law, EEA citizens may currently access benefits when they exercise a qualifying EU treaty right—for example, through employment or self-employment, or when they have become permanent residents. The new clause would remove that qualification and provide that any EEA citizen in this country with a child, for whatever period and in whatever capacity, may qualify for welfare benefits.

We believe that a general qualifying threshold of five years for access to benefits in immigration procedures is the right one, as it reflects the strength of a person’s connection to the United Kingdom and the principle that people should come to the UK to contribute, rather than to take advantage of, and place pressures on, taxpayer-funded services and welfare payments. Non-EEA migrants who come to live in the UK are currently expected to provide for any children they have without recourse to public funds. There can be no reasonable justification for adopting a different principle for EEA citizens arriving in the UK when the new immigration system is introduced, given that we have now left the European Union.

Finally, new clauses 59 and 62 incorrectly reference the immigration health surcharge. The immigration health surcharge is not a public fund. It is a contribution made by temporary migrants towards the costs of the NHS services they can access from day one. These new clauses would undermine the intention to establish a unified immigration system that builds public confidence in its operation, and therefore the Government cannot accept them.

[Stuart C. McDonald]

People do not come to this country to take advantage of the social security system; they come here to work or because they are family members of British citizens or settled persons. Having asked them to come to work or join family members here, I regard it as unfair that we do not extend the same social safety net to them. We are not arguing for a discriminatory system.

As the Minister knows, we are limited by the scope of the Bill. I feel that we have not got to the fundamental principle of why we can ask people to contribute on the one hand and yet not provide them with the same safety net. This is particularly urgent in relation to the coronavirus, and we need fast action. The Minister referred to this matter being under review, but we are several months into the crisis and we will have to revisit this issue on Report. In the meantime, I beg to ask leave to withdraw the clause.

Clause, by leave, withdrawn.

New Clause 46

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) make regulations amending 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;

(c) also includes the family members referred to in 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.”—(Stuart C. McDonald.)

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.

Brought up, and read the First time.

[Stuart C. McDonald]

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

It is a pleasure to address new clause 46, this time with a cross-party hat on, rather than my usual SNP hat. I am grateful to the Chair of the Home Affairs Committee, the hon. Member for Kingston upon Hull North and others for co-ordinating on this new clause.

As Members will know, the European Union has in place a fairly mature—it is certainly not perfect, but it is long standing—system of deciding which member state should appropriately consider a claim for asylum. For example, if an unaccompanied child is found on one of the Greek islands seeking asylum and it is known that they have family members in another EU country, few of us here would argue against the notion that the child should be reunited with their family and the claim considered in that member state.

In January this year, Parliament passed section 37 of the European Union (Withdrawal Agreement) Act 2020, which regrettably abolished the previous requirement on the Government to seek to negotiate an alternative to replace the family reunion provisions in the EU’s Dublin regulation. At the time, the Government were full of assurances that this did not represent a downgrading of their ambitions and said that they would protect family reunion for unaccompanied children in the Brexit negotiations, but in its current form, the UK’s proposal to the EU rows back on those assurances and would leave hundreds of children stranded.

There are numerous problems with what the Government propose. Most fundamentally, the proposed text removes all mandatory requirements on the Government to facilitate family reunions and would make a child’s right to join their relatives entirely discretionary. The text also intentionally avoids providing rights to children. It does not provide for appeals and attempts to put these issues beyond the reach of UK courts. Other categories of vulnerable refugees, including accompanied children and adults, would lose access to family reunion altogether. A series of other key safeguards are removed, including strict deadlines for responses and the responsibility for gathering information being on the state rather than the child.

This issue is hugely important. Between 2009 and 2014, before mandatory provisions were introduced by Dublin III, family reunions to the UK were carried out at an average rate of 11 people annually. Between 2016 and 2018, after the mandatory provisions were introduced by Dublin III, family reunions to the UK were carried out at an average rate of 547 people annually. The Government were not straight with Parliament when they proposed clause 37 of the withdrawal Bill earlier this year, and I think they have behaved in a rather upsetting manner, if I can put it like that.

We now have a situation where there are unaccompanied child refugees and refugees more generally living in appalling conditions in Greece and France. Of course those countries are under an obligation to do more to support and assist them, but many of those kids have family here, and I cannot see how any reasonable person can argue against the logic, the sense and the simple compassionate idea that that child should be reunited with their family in this country and have their asylum claim decided here.

The Government should stop messing about, stop trying to water down their previous commitments and revert to the obligation that Parliament previously placed upon it, which is to negotiate a full and proper replacement of the Dublin regulations, including an obligation to allow children to be reunited with their families in the United Kingdom.

[Holly Lynch]

It is a pleasure to follow the hon. Member for Cumbernauld, Kilsyth and Kirkintilloch East, the SNP spokesperson, who used his experience to make a very convincing contribution.

Labour will support new clause 46, which was tabled by the Chair of the Home Affairs Committee with the support of a number of its members, as well as the Chairs of the Joint Committee on Human Rights and the Housing, Communities and Local Government Committee.

As we have heard, as a member of the EU, the UK has participated in the Dublin III regulation, which has allowed people seeking asylum in Europe to be transferred to the UK on the basis of family unity and to have their asylum claims considered in the UK. The Dublin III mechanism generally affects a small number of children, but it has a transformative effect on their lives. It has become an increasingly important family reunion route, with more than 1,600 people having been reunited through it since the start of 2018.

However, this route will end once the transition period comes to an end on 31 December 2020. While the Government have committed to seeking an arrangement through the UK-EU negotiations that would maintain a family reunion element of the Dublin system for separated children, we would very much like assurances that the Government are firmly committed to this.

We are concerned that, unlike Dublin III, the current proposals would not be mandatory and would take us back to the days when child refugees were reunited with family only at the discretion of the national Government. That would require the transferred person to make an asylum claim and only secure family unity pending a decision on that claim. Labour, along with the Families Together coalition, supports new clause 46. We want to see a system that retains the family reunion route under the Dublin III regulation for all families.

This is Refugee Week, and family reunion has been a long-standing feature of the UK’s immigration system. The United Nations High Commissioner for Refugees has said that

“there is a direct link between family reunification, mental health and successful integration.”

By diminishing children’s chances of reaching their relatives legally, restrictive rules sadly only drive people to take more and more perilous alternatives, putting lives at risk and empowering people smugglers.

Labour joins Safe Passage, Amnesty International, the British Red Cross, Oxfam, the Refugee Council, the UNHCR and so many others who make up the Families Together coalition to urge the Government to prioritise family reunion, so that children, spouses and vulnerable adults can reunite with their family and close relatives, by maintaining safe and legal routes for people to come to the UK.

At a time when we are all feeling the effects of separation from our families due to the pandemic, the Government must recognise the need to protect all child refugees adequately and provide a legal and safe means for the reunification of families.

--- Later in debate ---

[Kevin Foster]

The Government are committed to the principle of family reunion and supporting vulnerable children. We recognise that families can become separated because of the nature of conflicts and persecution, and the speed and manner in which people are often forced to flee their country.

We will continue to provide safe and legal routes for families to reunite in the UK. We have a proud record of providing protection to those who need it, including children, and of reuniting families under the existing immigration rules. The new clause fails to take into account our negotiations with the EU, which I will come to later.

The UK continues to be one of the world’s leading refugee resettlement states. We resettle more refugees than any other country in Europe and are in the top five countries worldwide. Since September 2015, we have resettled more than 25,000 vulnerable refugees in need of protection through our refugee resettlement schemes, with around half being children. We can be proud as a country of our ambitious commitments and achievements. The Government are delighted that their overall approach was endorsed in the general election in December by the British public.

Furthermore, the UK already has a wide range of provisions in existing immigration rules that allow UK-based family members to sponsor children and other relatives to enter the UK for family reunion purposes. Those rules apply to a sponsor who is a refugee, a settled person or a British citizen. All those rules are unaffected by the UK leaving the EU and they will continue to be available after the transition period ends.

Our refugee family reunion policy is intended to allow those granted refugee status or humanitarian protection in the UK to sponsor pre-flight, immediate family members to join them here. Where appropriate, our policy includes scope to allow other family members to reunite with refugees in the UK. This may be on an exceptional basis or simply under a different route.

The new clause fails to distinguish between the very different circumstances of sponsors who are refugees and those who are asylum seekers—those seeking refugee status. It is important that the sponsor already has refugee or humanitarian leave in the UK before they are able to sponsor family members to join them. Allowing individuals to sponsor family members to join them in the UK before a decision on their asylum claim is made creates greater uncertainty for families, who may be unable to remain in the UK.

Very careful consideration is required before we extend family reunion provisions, to guard against significantly increasing the number of people who could qualify for family reunion, but who do not necessarily need protection themselves and who may be making unfounded claims of our protection systems for economic migration purposes. That could reduce our capacity to assist the most vulnerable refugees.

In the year ending March 2020, over 7,400 refugee family reunion visas were issued to partners and children of those previously granted asylum or humanitarian protection in the UK, which—hon. Members may be interested to know—is 37% more than in the previous year. There are further provisions in the immigration rules that allow those with refugee leave or humanitarian protection to sponsor adult dependant relatives living overseas to join them. This is where, as a result of age, illness or disability, a person requires long-term personal care, which can only be provided by their relative in the UK, without recourse to public funds. The same approach is applied to British citizens who wish to sponsor such relatives.

Furthermore, under part 8 of the immigration rules, children with relatives in the UK with refugee status or humanitarian protection are able to apply to join them in the UK, where there are serious and compelling family or other considerations that make exclusion of the child undesirable and where suitable arrangements have been made for the child’s care. In addition, appendix FM of the immigration rules already provides routes for British and settled sponsors, and those with protection-based leave, to sponsor family members to join them in the UK. We are aware that financial and other requirements are in place in those rules, which have been upheld as lawful by the Supreme Court. It is appropriate that all those who seek to sponsor a family member under these routes can meet a consistent set of requirements.

The new clause proposed by the hon. Member for Cumbernauld, Kilsyth and Kirkintilloch East is based on the Dublin regulation, which is an EU provision. The UK is no longer an EU member state. As a sovereign country, we already have our own routes for adults and families to be reunited in the UK, which are substantial, as I have just set out. As a sovereign state, it is important that we do not seek to recreate EU laws unilaterally, without considering what we want the UK’s migration and humanitarian protection system to look like. Importantly, we have been very clear that, while we are no longer in the EU, the UK and the EU have a long history of working together and we have recognised that it is in our best interests to continue to do so. That is why we are pursuing, through formal negotiations, new reciprocal arrangements with the EU for the family reunion of unaccompanied asylum-seeking children in either the UK or the EU with specified family members in the EU or the UK, where it is in the child’s best interests.

We published our draft legal text as a constructive contribution to the negotiations. A negotiated agreement for a state-to-state referral and transfer system would provide clear and consistent processes between the UK and EU member states, ensuring appropriate support for the child and guaranteeing reciprocity, yet these guarantees cannot be provided for in domestic UK provisions alone because they are inherently reciprocal. In addition, subsection (2)(a) of the new clause would require immigration rules to be made by regulations. That is not how immigration rules are made; they are made under the procedures set out in the Immigration Act 1971.

Finally, the new clause would require the Government to lay before Parliament a strategy on the relocation of unaccompanied children. The scope of this strategy is ambiguous. It is unclear whether it relates only to family reunion or whether it covers asylum-seeking children. The explanatory note accompanying the new clause suggests that it is solely about family reunion, but that is not reflected in the drafting. Therefore, for the reasons that I have outlined, the Government are not able to accept the new clause.

[Stuart C. McDonald]

I am grateful to the Minister for his response. I welcome the fact that the Government are committed to the principle of family unity. Indeed, the Minister was right to point out some of the good work that has been done in recent years, particularly in terms of resettlement. Currently, some of that tends to be forced upon the Home Office, rather than being designed and promoted within it, but nevertheless it is welcome and that has been a success.

In other senses, I fundamentally disagree with the Minister. He cited some rules that had been deemed lawful by the Supreme Court. That is not exactly a ringing endorsement, but, nevertheless, it is clear that some of the rules he was referring to and the financial requirements are absolutely impossible—so impossible that the rules are almost worthless.

The SNP wants the UK to go further on family unity. My hon. Friend the Member for Na h-Eileanan an Iar (Angus Brendan MacNeil) had the endorsement of Parliament to expand the family reunion rules and, of course, the Government managed to use the system to ignore that vote. Given what we have heard today and in previous weeks, including the publication of that text, I fear that we are in danger of going backwards, and not just in terms of Dublin. We urgently need to hear what the future of resettlement will be, so we will be watching carefully.

In the meantime, Mr Stringer, we will revisit this matter on Report. Meanwhile, I beg to ask leave to withdraw the clause.

Clause, by leave, withdrawn.

New Clause 51

Immigration Detention: Removal from Association

“(1) Section 153 of the Immigration and Asylum Act 1999 is amended as follows.

(2) After subsection (2) insert—

‘(3) Rules made under this section must prohibit the involuntary removal from association of any affected person detained in a removal centre save for where that is—

(i) reasonably necessary to protect that person or another person from immediate harm; and

(ii) for no longer than is necessary for this purpose and for no longer than maximum 24 hours.

(4) For the purposes of this section—

“affected person” means any person whose rights are affected by repeal of legislation by or under Schedule 1 of the Immigration and Social Security Co-ordination Act 2020 or by regulations made under section 4 of that Act.

“removal from association” means any restriction on a person associating with others that is not common to all persons then detained at the same removal centre.’” .—(Stuart C. McDonald.)

This new clause seeks to prohibit removal from association with others in detention save for removal where that is necessary.

Brought up, and read the First time.

[Stuart C. McDonald]

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

I had originally anticipated that this would be part of a much wider debate on immigration detention, but it looks like we will be having that on Report instead of in Committee. I am grateful to Medical Justice for flagging up the continued use of segregation in immigration removal centres, which we believe risks causing severe and permanent damage to detainees. In the past decade, at least two deaths in IRCs have been directly linked to the use of segregation. Segregation has played a role in four High Court cases in which a detainee’s detention or conditions of detention were found to amount to inhuman and degrading treatment in breach of article 3 of the European convention on human rights. Countless more detainees have suffered the negative impacts of segregation on their mental and physical health.

What we are really talking about is the practice of keeping a detainee separate from the rest of the IRC population. It is usually done by placing the detainee in a special unit at the centre, either alone or with other detainees being held under similar conditions. Segregated detainees can be locked in their cells for up to 23 hours a day, with severe restrictions placed on their activities and interactions with others.

In short, segregation is one of the most severe and draconian measures used in any detainment setting. Detainees can be held for an initial period of 24 hours, but that can be extended to seven days and 14 days with the authorisation of the Secretary of State. It can then be subsequently renewed, if required.

The effects of segregation on physical and mental health can be devastating. It has been found to lead to increased rates of anxiety, social withdrawal, hallucinations and suicidal thoughts. Even after relatively short periods of time, the damage done to a person’s health can be long-lasting and in some cases permanent. Research has shown that segregation can have a negative effect on the health of anyone who experiences it, and the risk for those with pre-existing mental health conditions or other vulnerabilities is particularly high. People who have been held in similar conditions in the past as part of torture, for example, may find the experience extremely re-traumatising.

The stated justification for the use of segregation in IRCs is the interests of safety and security or for refractory or violent detainees. However, a report from Medical Justice in 2015 showed that segregation is being used as a form of punishment and to house individuals with mental health issues that cannot be adequately managed in detention, including to manage detainees at risk of self-harm.

Inspection reports from independent monitoring boards and Her Majesty’s inspectorate of prisons continue to raise concerns about the use of segregation in IRCs. Examples of such practices include detainees inappropriately segregated for months and years, with one detainee being segregated more or less continuously for 22 months. Another detainee was only transferred to psychiatric hospital following 80 days in segregation, and yet another was segregated more than eight times during her 800 days in detention. The issues are ongoing. Segregation is not helping people, but is, on the contrary, making things much worse.

The key point is the availability of segregation, which perpetuates the inappropriate detention of those who often end up subject to it. It allows for problem individuals or vulnerable individuals who cannot be managed in detention to nevertheless still be detained. Despite their detention being inappropriate, the Home Office knows that there is always a possibility of placing them in segregation, should their condition deteriorate or their behaviour grow increasingly difficult to manage. Once these vulnerable detainees end up being segregated, they are housed in an environment that is totally unsuited to their needs. They are placed in forced isolation, removing them from the support of their peers, as well as limiting their visibility and access to organisations that could provide help.

If the use of segregation was not an option, proper attention would need to be paid to whether it was appropriate for the individual to be in detention at all, whether they can be managed safely in an IRC or whether an alternative approach should be sought with more appropriate support in the community. That is why the safeguards and protections in place under rule 40 and rule 42 can never be adequate. We need to abolish the practice altogether.

The new clause would still allow and make provision for crisis intervention where there is an imminent risk of harm to the individual or other individuals in the IRC, but that should be the purpose of those interventions, and that should be it. Too often, that intervention is being used and abused by the Home Office. People who belong either in police custody if they have breached the criminal law, or in a mental health institution should not be detained in IRCs in inappropriate conditions for days on end. I hope the Minister will address those points and seriously look at the issue I have flagged up, because the situation cannot be allowed to continue.

[Kevin Foster]

I thank the hon. Member for the opportunity to debate this topic. As he will be aware, in recent years the numbers in detention overall, excluding the current period, have been declining, but a process obviously still needs to be in place to manage the detentions, the detention centres and the detention estate, as we still have it.

--- Later in debate ---

Given the reasons I have set out and given the need to ensure safety and security within detention centres, I hope the hon. Gentleman will accept the reasoning put forward for why the Government cannot accept this new clause.

[Stuart C. McDonald]

I am grateful to the Minister for his explanation of what should happen, but I suspect that the theory of the rules does not match the practice. The view of Medical Justice is that what the Minister has just described does not reflect what is actually happening in detention centres. I am sure this is something that we will revisit, but in the meantime I beg to ask leave to withdraw the motion.

Clause, by leave, withdrawn.

New Clause 53

Private life

‘(1) This section applies when a court or tribunal is required to determine whether a decision made under the Immigration Acts in respect of a relevant person—

(a) breaches a person’s right to respect for private and family life under Article 8; and

(b) as a result would be unlawful under section 6 of the Human Rights Act 1998.

(2) In subsection (1) a “relevant person” is 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 amendments which is repealed by Schedule 1; or

(a) otherwise residing in the United Kingdom in accordance with any right derived from European Union law which continues, or immediately before the commencement of Schedule 1 continued, by virtue of section 4 of the European Union (Withdrawal) Act 2018 to be recognised and available in the United Kingdom.

(3) In a case to which this section applies, section 117C of the Nationality, Immigration and Asylum Act 2002 shall be read subject to the following modifications.

(4) Section 117C(5) shall be read as if the words “and the effect of C’s deportation on the partner or child would be unduly harsh” were replaced with “and either

(a) the effect of C’s deportation on the partner would be unduly harsh; or

(b) it would be unreasonable for the child to leave the UK or to remain in the UK without C.”

(5) Section 117C(6) shall be read as if—

(a) the word “(“C”)” were inserted after “foreign criminal”; and

(b) the words “there are very compelling circumstances, over and above those described in Exceptions 1 and 2” were replaced with “either

(c) C has a genuine and subsisting parental relationship with a qualifying child and it would be unreasonable for the child to leave the UK or to remain in the UK without C; or there are very compelling circumstances, over and above those described in Exceptions 1 and 2.’—(Stuart C. McDonald.)

This new clause modifies the threshold for deportation of EEA nationals and family members who are parents of “qualifying children” – children who are British or have lived in the UK for 7 years or more.

Brought up, and read the First time.

[Stuart C. McDonald]

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

[The Chair]

With this it will be convenient to discuss

New clause 54—Family life—

‘(1) This section applies when a court or tribunal is required to determine whether a decision made under the Immigration Acts in respect of a relevant person—

(a) breaches a person’s right to respect for private and family life under Article 8, and

(b) as a result would be unlawful under section 6 of the Human Rights Act 1998.

(2) In subsection (1) a “relevant person” is 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 amendments 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, or immediately before the commencement of Schedule 1 continued, by virtue of section 4 of the European Union (Withdrawal) Act 2018 to be recognised and available in the United Kingdom.

(3) In a case to which this section applies, section 117C of the Nationality, Immigration and Asylum Act 2002 shall be read subject to the following modifications.

(4) Subsection (4)(a) shall be read as if the words “C has been lawfully resident in the United Kingdom for most of C’s life” were omitted and replaced with “one of criteria (a) to (c) in subsection (4A) is satisfied”.

(5) Section 117C shall be read as if after subsection (4) there were inserted the following words—

“(4A) The criteria in this subsection are—

(a) that C has been lawfully resident in the United Kingdom for most of C’s life,

(b) that C was born in the UK, or

(c) that C arrived in the UK aged under 18 and has lived in the United Kingdom for a continuous period of seven years or more.

(4B) If the criterion in subsection (4A)(b) or the criterion in subsection (4A)(c) is satisfied, it shall be presumed that C is socially and culturally integrated in the UK for the purposes of subsection (4)(b).

(4C) A presumption under subsection (4B) is rebuttable.’

This new clause modifies the criteria for the deportation of third country nationals with very significant connections to the UK who are impacted by this Act.

[Stuart C. McDonald]

I am optimistically—and perhaps naively—attempting to spark a sensible, measured and constructive debate on laws relating to deportation, and the balance and interaction with family and private life. It is my fault, but I think the headings on the new clauses should probably be the other way around. The one relating to family is more closely linked to private life and vice versa.

Of course, there are people who commit serious crimes and have no connection with the UK, and they must be deported without any real hesitation. However, there are also many other cases where the impact of any such decision has such serious consequences—not just for the individual, but for the family member—that deportation is not appropriate in the minds of most reasonable people. Once a person has completed the punishment provided for by our criminal laws, they resume their life in this country.

There is also a second category of case, where to all intents and purposes the Home Office is not deporting foreign national offenders. In reality, it is deporting British people—people who have lived pretty much all their lives here and have no connection with the place to which they are being deported, other than the passports that they have never used or used only once when they were toddlers. From time to time, we need to be brave enough to confront the question of where we draw the line. I make the case that the line has been drawn in the wrong place, and that powers of deportation are now used too often and in inappropriate circumstances. That is a challenge to MPs on both sides of the House, because much of our deportation legislation has been in place under Labour Administrations as well as Conservative Administrations.

I turn first to new clause 53, where other family members are affected. As hon. Members will be aware, those from EEA countries and Swiss nationals and their family members cannot generally be deported, except on grounds of public policy, public security and public health, and where their conduct poses a genuine, present and sufficiently serious threat to one of the fundamental interests of our society—a forward-looking assessment that allows for consideration of competing family life considerations. By contrast, people from outside the EEA are subject to automatic deportation if sentenced to imprisonment of 12 months or more. No consideration is given to whether a person continues to pose a risk, and those sentenced to less than 12 months can also be deported if the Secretary of State believes it to be conducive to the public good.

Consideration of matters relating to family has been seriously restricted. There are only two very narrow circumstances in which issues of family will trump deportation. A person must show that they have either a genuine and subsisting relationship with a qualifying partner, or a genuine and subsisting parental relationship with a qualifying child, and they must show that the experience of deportation for the partner or child would be unduly harsh. The test is even higher where there has been a sentence of four years or more, but where very compelling circumstances must be shown.

The new clause concerns children, and we argue that the test set out just now is unduly restrictive and not in the best interests of children. Instead of requiring unduly harsh circumstances, the new clause would stop deportation where it would be unreasonable for a child to leave the UK or to remain in the UK without the parent. It is important to appreciate just how demanding the current test is. Home Office policy states that the words “unduly harsh” must be given their ordinary meanings. It notes that the Oxford English Dictionary defines “unduly” as “excessively”, and “harsh” as “severe” or “cruel”. In short, Parliament has put in place a regime that allows for child cruelty; only where that child cruelty becomes excessive do we think again.

It is little wonder that judges have sometimes expressed great sympathy with appellants and surprise at the effect of the legislation that this place has enacted, but their hands are tied. As Lord Justice Baker remarked in the case of KF Nigeria:

“For those lawyers, like my Lord and myself, who have spent many years practising in the family jurisdiction, this is not a comfortable interpretation to apply. But that is what Parliament has decided.”

Two tribunals had found that KF should not be deported because of the significant impact it would have on his son, despite a three-year sentence for burglary and robbery. Being a parent does not exempt someone from facing the criminal justice system if they break the law, but deportation goes further; it can effectively and summarily end a child’s family life for at least the duration of their childhood. There are well-documented long-term negative impacts on a child’s upbringing, education and social behaviour, with repercussions for their communities. There are also, of course, implications for a partner left behind in the United Kingdom, who is now responsible for bringing up the child alone.

I am not submitting that parents can never be deported; I am submitting that we need to be much more careful and sensitive about the circumstances in which it happens. This is not about people escaping justice, because they will still face the criminal justice system; it is about protecting innocent children. Deportations would still be possible, even where a child was involved, but only where a court assesses that it would be reasonable for the child to leave the UK along with the parent, or for the child to remain in the UK without the parent.

I turn to new clause 54, which challenges the Government on the criteria used to decide on the deportation of people who have significant connections with the United Kingdom. The issue was summarised by the former prisons and probation ombudsman, Stephen Shaw, in his 2018 review of treatment of vulnerable adults in immigration detention, which was commissioned by the then Home Secretary, the right hon. Member for Maidenhead (Mrs May). He reported that, time and again, those he met who were being held under immigration powers after serving custodial sentences were long-term British residents who had often been brought to the UK as young children and who were, to all intents and purposes, British.

To quote Stephen Shaw’s review:

“I find the policy of removing individuals brought up here from infancy to be deeply troubling. For low-risk offenders, it seems entirely disproportionate to tear them away from their lives, families and friends in the UK, and send them to countries where they may not speak the language or have any ties. For those who have committed serious crimes, there is also a further question of whether it is right to send high-risk offenders to another country when their offending follows an upbringing in the UK.”

It bears remembering that some of those individuals would have been entitled to British citizenship had they been aware, or not been priced out of it by the Home Office, to reference my earlier amendment on that subject.

I agree absolutely with Stephen Shaw, and I have personal experience of representing, very occasionally, clients who faced deportation. I remember in particular one Glaswegian lad—and he was Glaswegian—who was 18 years old and had been in this country since the age of four. He had been essentially abandoned, and passed from pillar to post around the care system. Persistent fairly low-level offending resulted in custody. In those circumstances, it was outrageous to deport him.

Some of the people on the charter flights to Jamaica in February 2020 were in that cohort, including young men whose offending involved belonging to county lines operations, which we all know are closely associated with coercion and modern-day slavery. Some were deported for offences committed a long time ago, with no account taken of rehabilitation.

A terrible example of that type of case is the ongoing saga of Osime Brown, a 21- year-old who is severely autistic. He arrived in the UK at the age of four from a country to which the Home Office now wants to deport him. I urge Members to have a look online at the facts and circumstances of the case and to say, hand on heart, that they have no problem with what the Home Office is up to.

The new clause changes the exceptions so that greater consideration is given to people established here at a young age and the reality that they are usually, to all intents and purposes, British, even if they do not hold that passport. It adds exceptions for people who were born in the UK, or who arrived in the UK under the age of 18 and have lived here for seven years or more. It also establishes a presumption that if a person was born in the UK, or arrived in the UK aged under 18 and has lived in the UK for a continuous period of seven years or more, they are considered socially and culturally integrated into the UK—albeit that that presumption would be rebuttable. The person would still have to show that there are very significant obstacles to reintegration.

The 33rd recommendation of Stephen Shaw’s review was:

“The Home Office should no longer routinely seek to remove those who were born in the UK or have been brought up here from an early age.”

Instead of commissioning reviews, it is time for the Government to start implementing the reviews that they have already heard from. For those reasons, I urge the Committee to look favourably on the new clauses.

[Kevin Foster]

The new clauses concern the principles that a court or tribunal is required to take into account when assessing what is in the public interest for the purposes of determining whether a foreign national offender’s deportation breaches article 8 of the European convention on human rights. The article 8 ECHR right to respect for private and family life is a qualified right, which can be circumcised—[Interruption.] I will have to ensure I write that one out again next time. It can be circumscribed where lawful, necessary and proportionate, in the interest of a number of factors including national security, public safety, the prevention of disorder or crime, and the protection of the rights and freedoms of others.

Section 117C of the Nationality, Immigration and Asylum Act 2002 provides that, when assessing whether deportation breaches article 8 of the ECHR, the deportation of a foreign national offender is in the public interest unless certain exceptions apply. The new clauses seek to alter those exceptions and therefore undermine Parliament’s clear position on what the public interest requires in such cases.

New clause 53 would amend the exception at section 117C regarding foreign national offenders who have been sentenced to less than four years’ imprisonment, and who have a genuine and subsisting relationship with a qualifying partner or child, meaning that deportation would not be in the public interest if it would be unreasonable for the child to leave the UK, or to remain in the UK without the foreign national offender. That would be in addition to the existing exception that applies when the effect of the deportation on the partner or child would be unduly harsh.

--- Later in debate ---

I suggest that many members of the public would consider it right for the Home Office to take a clear view, based on legislation passed by a previous Government, about the conduct of those who have committed serious criminal offences or been persistent criminals, and seek to protect the public from them. For those reasons, the Government will not accept the new clauses.

[Stuart C. McDonald]

I am grateful to the Minister for his response. We need to look at this issue much more closely, as we have only skimmed over the issues today. The Government must start collating data on the number of kids who end up being separated from a parent because of deportation, including a number of British citizens. We will ask questions and revisit the issue, but for now I beg to ask leave to withdraw the motion.

Clause, by leave, withdrawn.

[The Chair]

We now come to new clause 57.

[Stuart C. McDonald]

I would like to speak to new clause 55, Mr Stringer. I did not speak to it because new clause 47, with which it is grouped, was not moved.

[The Chair]

Sorry. My script is completely wrong. I call the hon. Member to move new clause 55.

New Clause 55

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.” —(Stuart C. McDonald.)

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

Brought up, and read the First time.

[Stuart C. McDonald]

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

It used to be that the Home Office enforced immigration rules by good old-fashioned intelligence-led investigation and action, but under political pressure and the influence of austerity, increasingly the Home Office has decided to rely on essentially outsourced immigration control, hoping that if they made life tougher for unauthorised migrants, they would leave of their own accord. This is of course the hostile environment, and it has been ramped extensively in the last two Immigration Acts, such that little landladies and landlords, as well as bank staff and Driver and Vehicle Licensing Agency workers, all have to work as immigration officers now. All sorts of Government Departments are tasked with helping the Home Office with its work by sharing information, which makes people wary of accessing public services.

When these measures were introduced, Opposition MPs warned that there would be all sorts of negative consequences and that errors would be made, meaning that people would be denied housing or would have their bank accounts closed when they should not have been. We warned that there was little to suggest that attempts at enforcing destitution and desperation would persuade people to leave, that its impact would lead to all sorts of injustices, and that it could actually make immigration enforcement harder, not easier, as undocumented migrants are forced into the hands of unscrupulous landlords and employers and made ever more difficult to trace.

Four and six years on from the relevant Immigration Acts, the Bill would see that same hostile environment impacting on many more people. We should not allow that to happen without first assessing whether the Government have achieved what they set out to achieve with the hostile environment measures, or whether the warnings from Opposition MPs have been proven correct. Has the hostile environment achieved anything, or has it caused relentless problems, as was forecast?

It appears that the Home Office cannot tell us what the impact of the hostile environment has been in contributing to its policy goals. As the National Audit Office said only yesterday, it is currently unable to assess whether these measures have had any meaningful impact on the likelihood that an individual will leave the UK voluntarily. In fact, the number of voluntary departures has reduced significantly since 2015—in 2015 there were an average of 1,200 such voluntary departures each month, and by 2019 that was down to 460.

That echoes previous findings by the chief inspector of borders and immigration in relation to the right to rent, which is probably the most dangerous of the hostile measures, in that it leaves private citizens with the job of doing immigration checks. He concluded that the scheme had yet to demonstrate its worth as a tool for encouraging immigration compliance, with the Home Office failing to co-ordinate, maximise or even measure effectively its use, while doing little to address stakeholder concerns.

I want to emphasise those concerns. Time and again, the Home Office has been warned about the discrimination in the housing market caused by the right to rent scheme. These warnings came from the Joint Council for the Welfare of Immigrants and from the Residential Landlords Association. It is not difficult to understand how this comes about. Let us imagine a close relative who happens to let properties. How easy would it be for them to assess immigration status? How easy would it be for them not to be influenced by the fact that if they made a mistake in that assessment they would face criminal prosecution, a fine and even imprisonment? It is blindingly obvious that there is a huge danger of discrimination. Repeated surveys and assessment by organisations such as JCWI and the Residential Landlords Association have shown that to be the case.

We now have a court case proceeding to the Supreme Court. Both in the High Court and in the Court of Appeal, the finding of fact was made that this scheme has in fact resulted in discrimination. The Home Office had success at the Court of Appeal stage, on the basis that on paper and in theory the scheme could be operated in a way that did not lead to discrimination, but that is not anything to celebrate. The scheme has been ruled lawful, but it has been found to operate in a discriminatory way.

This is a time when we really must have a thoughtful and comprehensive analysis of what has happened to immigration policy and the functioning of the hostile environment. That is exactly what Wendy Williams suggested in her Windrush lessons learned review, yet today we have been asked to extend the scope of that hostile environment without such a review taking place, and without any evidence being provided by the Home Office that the scheme is having an impact or contributing towards any of its policy goals.

Right to rent is the most scandalous of these problems, but it is causing all sorts of problems in other areas as well. For example, the independent chief inspector of borders and immigration found that something like 10% of the bank accounts that have been closed as part of the scheme related to people who had every right to be here. That is a huge number of people who have been caused problems by this way of doing things, and they are not only migrants; of course, several million UK citizens do not have a passport and therefore struggle sometimes to prove their right to access services and housing, and to go about their lawful business.

We need to know from the Minister what work is being done to assess the impact of the hostile environment. Rather than celebrating the finding that, in theory, the right to rent scheme could operate without discrimination, what work has been done to make sure that it operates without discrimination? If no such work has been done, or if it cannot be guaranteed that the scheme will operate without discrimination, when will it be repealed?

[Holly Lynch]

I support new clause 55 and I would have supported new clause 47 had it been moved. Both new clauses seek to safeguard EEA and Swiss nationals from the reality of the Home Office’s hostile environment policy.

We have cited examples of potential problems relating to the hostile environment throughout the sittings of this Bill Committee, but the Windrush lessons learned review highlighted the structural flaws that permeate the hostile environment approach. Instead of increasing the effectiveness of the Home Office machine, that approach has instead led to the hounding of those unable to prove their status, while simultaneously disregarding the legitimacy of independent cases.

Throughout the sittings of this Committee, we have been at pains to articulate our concerns that unless the European Union settlement scheme is 100% successful, we will never be in a position to know whether it has been or not. People will suddenly find themselves subject to the hostile environment.

Of the Windrush generation, it has been said:

“Paulette Wilson was detained in an immigration removal centre and warned that she faced removal after living in the UK for 50 years. She spent decades contributing to the UK—working for a time in this very House—yet she was treated like a second-class citizen.

Junior Green had been in the UK for more than 60 years, raising children and grandchildren here, but after a holiday to Jamaica he was refused re-entry despite holding a passport confirming his right to be in the UK. The injustice he suffered was compounded when, because of this action, he missed his mother’s funeral.

Lives were ruined and families were torn apart.”—[Official Report, 19 March 2020; Vol. 673, c. 1154.]

Those words, setting out those examples, are an extract from the Home Secretary’s statement to the House on presenting the Williams review in March. Yet we are still waiting for the necessary structural reforms to be made at the Home Office to give us any confidence that those who missed the EUSS deadline, because of reasons that should be looked upon favourably, will not be refused by one of the same decision makers who made misguided judgment calls on Windrush cases in the pursuit of Home Office targets.

In trying to mitigate the impact of the Windrush scandal, the Government launched a number of initiatives to go into communities and undertake almost a tidying-up exercise, to ensure that people had the paperwork they needed to protect them from such encounters with the Home Office in future. The Commonwealth citizens taskforce and the vulnerable persons team have delivered that work in communities, but we know that comparable preventive initiatives seeking to support those most at risk of not applying to the EUSS on time have had to stop work, due to the coronavirus. I hope the Minister might be able to update us on how those activities will be super-charged to make up for lost time, once it is safe for them to continue.

--- Later in debate ---

[Kevin Foster]

I thank my hon. Friend for highlighting that point. Many of the enforcement mechanisms that we use originate from before 2010. There is a little amnesia among some of the people who were here and voted for them. It is right that there are protections in place around public welfare benefits and suchlike. That has not been particularly controversial for parties of all colours over the past 10 to 20 years. We need to consider carefully the lessons learned review. In the Wendy Williams report there is a 2009 case of someone who was unable to return to the United Kingdom, even though they had a status granted under the Immigration Act 1971 as someone who had been settled in the UK before 1 January 1973.

As with many of the amendments that we have debated, the new clause is at odds with our commitment to the British people to introduce a single global migration system. New clause 55 is unnecessary, unworkable, and risks being detrimental to the cohort in question. As we have been clear before, free movement is ending, and from 1 January 2021 EEA and non-EEA citizens will be treated equally. Under the new system, everyone will be required to obtain the correct immigration status, and we will clearly distinguish between those who are here lawfully and those who are not, regardless of their nationality. Allowing EEA citizens to rent accommodation or exempting them from other measures, even if they do not have lawful immigration status, would contradict the Government’s stated position. It would in practice result in different rules applying, depending on a person’s nationality. This would be inherently discriminatory, given that there would be no justifiable reason for them after the end of the transition period.

New clause 55 would also weaken the UK’s new points-based immigration system. The measures in question are designed to encourage individuals to comply with UK laws and rules, and they have all been approved by Parliament. In the future, once free movement has ended, it is right that these measures will apply on the basis of whether or not someone has lawful status, rather than on the basis of their nationality, although I appreciate that the wording would probably be done to bring this within the scope of the Bill.

EEA citizens are already subject to the universal eligibility checks carried out by employers, landlords and the NHS, as these checks apply to everyone regardless of nationality, including British citizens. I had to show my own passport recently, when renting a flat. Disapplying the measures for a certain group would increase the scope for illegal migration and place taxpayer-funded services at risk of abuse.

It is not clear how new clause 55 would actually work. To exempt an EEA citizen from an eligibility check, it would first be necessary to establish that they are part of the exempt cohort. It would not be possible for those carrying out the checks, including employers and landlords, to do this without checking everyone, as they do now, to establish eligibility. Alternatively, they would have to second-guess who was in a particular cohort, which brings the obvious risks of leading to potential discrimination and unfair treatment.

I recognise that the hon. Members for Cumbernauld, Kilsyth and Kirkintilloch East and for Halifax wish to ensure that EEA citizens and their family members who are currently resident in the UK are not adversely impacted by such measures. This is why we have set up the EU settlement scheme, making it free and easy to get UK immigration status and to enjoy the same rights as now. That is why I believe it would be unhelpful to accept the new clause, and the Government will not do so.

[Stuart C. McDonald]

I am grateful to the Minister for his response, but I feel he rather skirted around getting to the heart of the issue, and he knows full well that the new clause is as it is because of issues of scope. When he talked about how this would not work because there would have to be checks on whether an EU national was seeking to take advantage of this new clause, he spoke about the dangers of guessing whether an individual may or may not be an EU national. That is exactly the problem with the right to rent scheme at the moment, in that some landlords and landladies are guessing people’s nationality when they are approached with inquiries about accommodation. I am glad that he has recognised that there are dangers in the scheme that causes such judgments to be made. Yes, there are problems with the wording of the new clause because of scope, but I shall drop it for now and think about this again in advance of Report. I beg to ask leave to withdraw the motion.

Clause, by leave, withdrawn.

New Clause 57

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 P, where P 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.”—(Stuart C. McDonald.)

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

Brought up, and read the First time.

[Stuart C. McDonald]

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

I am pleased to speak to new clause 57, which brings us to another discrete example of the broader hostile environment and the ever-expanding powers of the Home Office to gather information and require information to be shared with it. The new clause requires that the Government take measures to prevent the sharing of data for immigration purposes where that data has been collected or provided in the course of a person accessing healthcare and education or reporting a crime.

The fear of information being shared with the Home Office can have a pernicious effect on people’s willingness to seek help or to access vital public services, and of course it can also lead to injustice, as we saw in the Windrush fiasco. This is about supporting the survivors of serious crimes—such as domestic abuse, human trafficking and other forms of exploitation—to report them to the police, seek healthcare and escape to safety.

Essentially, the new clause challenges us about our priorities. Is our priority to ensure that people can feel safe when reporting crimes, and that they do not have to be anxious when sending their children for education and do not have to be in two minds about seeking healthcare when that is required, or is our priority to provide the Home Office with endless additional powers to snoop and gather information on the off-chance that it might be able to detain and remove another few individuals, even if that comes at an incredibly hefty price, including injustices such as Windrush? I say absolutely clearly that my priority is protecting safe access to vital public services, and that is why I am moving new clause 57.

[Kevin Foster]

I thank the hon. Gentleman for his contribution. I do understand his concern that those who come to this country should have safe and confidential access to essential public services. However, new clause 57 would restrict the ability of the immigration authorities to use data that has been collected in particular circumstances for immigration enforcement purposes, as far as those who now benefit from freedom of movement are concerned. In so doing, it would maintain the status quo for those cohorts as far as the use of such data collection is concerned. However, the crucial difference is that they would now be subject to the same measures of immigration control as people from the rest of the world subject to the same restrictions.

The new clause would severely restrict the ability of the immigration authorities to take enforcement action against that cohort. It would thereby result in differential treatment in respect of a migrant whose data would be collected in the same way, but which would continue to be used for immigration enforcement purposes when deemed appropriate, as it is now. It would also weaken the effect of the immigration system, as we are concerned to encourage compliance with immigration laws as approved by Parliament. We welcome the contribution made to the United Kingdom by those who are lawfully present, but it must be in accordance with the laws and rules that have been set out and agreed. No cohort should be exempt from measures that are put in place to ensure compliance with those laws and rules.

On the prohibition on sharing data collected by the police in respect of witnesses or victims of crime, we believe that could lead to unintended consequences. It could prevent those with unresolved immigration status, particularly those who are vulnerable, from being brought into the immigration system, regularising their status and receiving necessary support. In some cases, such as where someone has been the victim of domestic abuse, it could prevent the Home Office from providing information to the police on known vulnerabilities or safeguarding concerns, thereby reducing a perpetrator’s ability to control or coerce their victim. Engagement with immigration enforcement could, for example, reveal previously undisclosed evidence of domestic abuse, which the Home Office could then pass on to the police, leading to the provision of support from a specialist domestic abuse team and potential access to a refuge. Data sharing in those circumstances would be proportionate and necessary, and in the best interests of the victim. Data sharing also enables the Home Office to trace missing families and protect children who may be at risk, working collaboratively with social services, the police and local authorities to ensure safeguarding actions are taken. We will always have due regard for the safety and best interests of any children.

The Home Office has robust safeguards and controls in place to ensure data are handled securely, lawfully, ethically and in accordance with relevant data protection regulations. It must have a legal basis for processing data, and comply with the General Data Protection Regulation and the Data Protection Act 2018 when doing so. Individuals’ rights are protected by the role of the Information Commissioner’s Office, the UK’s independent body which upholds information rights. I remind the Committee of the comments I made at one of the last Home Office oral questions that were held physically in the Chamber before the current arrangements. When asked, for example, about whether the details of those approaching the NHS for treatment for covid-19 would be passed on to immigration enforcement, we were clear that, purely for the purposes of immigration enforcement, that would not be something we would be doing. Our approach is proportionate.

[Stuart C. McDonald]

The purpose of the new clause, and what it says expressly, is that information cannot be shared with the Home Office for the purposes of immigration control or enforcement. To my mind, that does not mean, for example, stopping the police making inquiries with the Home Office about whether somebody has been the victim of domestic abuse. I therefore think that is a rather unfair interpretation of what we are proposing.

[Kevin Foster]

Part of how we respond to victims and others is sometimes to look to resolve their immigration status as well. I would say it is quite proportionate that two parts of the Home Office work together on the enforcement of the UK’s laws, subject to it being proportionate and appropriate to do so. I think people would find it strange if that did not occur.

For the reasons we have outlined, with the robust safeguards in place, and the proportionate and legitimate aim of ensuring our immigration laws are not completely undermined, the Government will not accept the new clause.

[Stuart C. McDonald]

I am grateful to the Minister for his response. I am not sure I agree with his reasoning on what the new clause would or would not allow, but I will take that away and give it further thought. In the meantime, I beg to ask leave to withdraw the motion.

Clause, by leave, withdrawn.

New Clause 60

Report on the status and social security entitlements of UK nationals in the EU member states

“(1) The Secretary of State must prepare and publish quarterly reports on the progress being made by EU member states on the migration status and social security entitlements of UK nationals in their countries.

(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.”—(Kate Green.)

This new clause would require the Government to update the House of Commons on the progress being made by the EU27 countries on the implementation of protections for UK nationals in their countries on a quarterly basis.

Brought up, and read the First time.

[Kate Green]

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

The new clause would require the Government to report quarterly on the status and social security entitlements of UK nationals in EU member states. I am grateful to British in Europe for its comprehensive briefing in preparation for this debate.

Implementation in the EU of the citizens’ rights part of the withdrawal agreement is still in its early stages, with few countries having final or even draft legislation in place. Application processes have begun in only a handful of countries. The situation has understandably been exacerbated by delays caused by the covid crisis. However, that creates uncertainty for thousands of UK families and individuals in the EU, who are awaiting the outcome of applications to be allowed to stay in countries in which they have made their home that have opted for an application or constitutive system.

The European Commission’s promised guidance note, which was eventually published on 12 May, is helpful in clarifying some of the uncertainties, but outstanding issues include how dual UK-EU nationals and other citizens who do not rely on the withdrawal agreement for residence rights can evidence their rights; how the withdrawal agreement applies to UK citizens who are eligible for protection under the withdrawal agreement in their own right and for protection under EU law as family members of EU citizens; and whether UK citizens eligible for protection under the withdrawal agreement, which of course confers no right of free movement to third EU countries, can obtain the rights at least to some mobility enjoyed by other third-country nationals, either in addition to their withdrawal agreement rights or by waiving that protection and opting to register as non-withdrawal agreement third-country nationals.

In addition, the common format of the card evidencing withdrawal agreement rights, mandated by the Commission for UK nationals in the EU, fails to distinguish between permanent residence and ordinary residence. The conditions for lawful residence under EU law, which applies during the transition period, and under the withdrawal agreement for those who have not yet acquired permanent residence or had permanent residence confirmed, include requirements to be employed or self-employed, or economically self-sufficient with comprehensive health insurance.

Those conditions are applied strictly in many EU countries. The lockdown restrictions of the covid crisis, however, have caused people to lose their jobs or much of their income, and some will be unable to obtain comprehensive health insurance because of exclusions—students studying abroad and recent graduates are at particular risk.

We know the Government do not intend to extend the transition period. Will the Minister tell us whether the Government intend to ask EU member states to grant extensions to time limits for securing rights under the withdrawal agreement, which people have been unable to comply with because of covid restrictions on travel or the closure of administrative offices? That applies not only to residence rights across the EU, but to citizenship applications where 31 December this year is a cut-off date, such as is the case in Germany or Italy.

With much still unresolved, British in Europe and the3million have suggested that they should attend the specialised committee on citizens’ rights of the joint committee on implementation of the withdrawal agreement established—

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

Stuart C McDonald Excerpts

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

[Mr Davis]

My hon. Friend pre-empts the point that I am about to come to. A few are villains, and I would be the first to concede that, along with him. Predictably, as the Home Office always does when it has a weak case, it trotted out the gory details this morning—it listed 29 rapists, 52 violent offenders, 27 child sex offenders and 43 other sex offenders—designed, no doubt, to make our blood curdle.

That brings me to the other point of these new clauses. My question to the Minister, which I hope he will answer when he winds up the debate, is: when precisely did the Government start deportation proceedings on all those serious cases? Did they start the day that those people went into prison or sufficiently far in advance that those serious villains could go straight from prison to plane, with no stop at the detention centre? No, they did not, I am sure, but I would like to hear whether the Minister thinks they did the right thing on that.

The fact is that, to borrow a phrase from a former Home Secretary, the Home Office is not fit for purpose in managing deportations. Part of the point of these new clauses is to force the Home Office to get its act together, deal with the villains and stop punishing the innocent. That is why there is a six-month delay built into the new clauses—to give it time to get a grip.

I have one simple thing to say to the House. I have long been proud of our British justice system, but I am ashamed of what our incompetent deportation system does to people who arrived on our shores already badly damaged by human trafficking and modern slavery. It is time we put it right with new clauses 7, 8, 9 and 10.

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

It is a pleasure to follow the right hon. Member for Haltemprice and Howden (Mr Davis). I am in the unusual position of agreeing with pretty much everything that has been said by all four speakers so far, which I do not get to say very often, particularly in relation to my hon. Friend the Member for Argyll and Bute (Brendan O’Hara).

We in the SNP believe that this is a bad Bill—bad for families and bad for businesses—that sells EU nationals short and extends the scope of the hostile environment. Meanwhile, we have seen the Home Office move from disinterest in specific solutions for devolved nations to disdain bordering sometimes on contempt. It has been made clear during the passage of the Bill that there is to be no remote areas pilot scheme, despite that being a recommendation of the Migration Advisory Committee and an earlier Home Office commitment. Our amendments give Parliament a last chance to remedy these defects, and we will support other amendments that seek to find a silver lining to this Bill, such as amendments on putting a time limit on immigration detention, protecting care leavers, and protecting family reunion rights.

Turning first to the issue of family, sadly, this Bill will destroy more families by extending the scope of some of the most anti-family migration rules on earth. The degree of complacency that there is in Parliament about the damage these rules do to families and children surprises me. Five years ago, just three years after the rules were introduced, England’s Children’s Commissioner estimated there were nearly 15,000 Skype families in the UK—kids separated from a parent overseas because of these ludicrous financial thresholds. These rules do not even take into account the prospective income of the persons applying to come into the country. The commissioner said at the time:

“Many of the children interviewed for this research suffer from stress and anxiety, affecting their well-being and development. It is also likely to have an impact on their educational attainment and outcomes because they have been separated from a parent, due to these inflexible rules which take little account of regional income levels or family support available.”

Amendment 33 puts a brake on extension of these rules and, as the commissioner recommended, starts putting the heart back into the policy.

A second group of families that are being put in an impossible position by this Bill are those formed by UK citizens living across the EEA who may in future want to come back here with their family. These are UK nationals who would have had no reason to doubt that if they had a family while abroad, they would have derived rights to return here with their family members to the UK without having to jump the impossible hurdles of the UK’s domestic family migration rules; they could not have predicted Brexit, and applying the UK family rules to them, denying many a right to return here with their family, would seem incredibly unfair.

To be fair to the Minister, he has acknowledged that there is an issue here and has provided a grace period until 2022, during which such families can return, but this is essentially just kicking the can a little bit further down the road. It still leaves many with horrible decisions to make: do they uproot their families now, just in case they do not qualify to return later on? None of these families could have predicted that they would be in this position, so why not remove the cut-off point altogether, as amendment 38 seeks to ensure?

Finally on the issue of family, we are 100% behind the cross-party amendment on family reunion. The right hon. Member for Normanton, Pontefract and Castleford (Yvette Cooper) will say much more about that shortly, and we fully support what the hon. Member for East Worthing and Shoreham (Tim Loughton) has already said, but it is plain to see that, despite talking a good game, the Government’s proposals mean they are backsliding on earlier commitments made to the House; they mean fewer safe legal routes for children to get to family here, and that means more children risking dangerous, unsafe routes. The Government’s stance is a boon for traffickers and people smugglers and a disaster for children and families, and that is why we must support new clause 29.

This Bill is not just anti-family; it is anti-business. I have spoken enough at previous stages about the huge problems that salary and skills thresholds will cause when the new system is brought into force, but today I want to focus briefly on the problems that the Bill will cause even if a job qualifies for a visa under the tier 2 system. Our system will make it unbelievably difficult and expensive to bring workers in, and will make this country an eye-wateringly unattractive place for people to come to. Figures from the international immigration law firm Fragomen show that under the future immigration system a tier 2 worker who enters the UK to work for five years with a partner and three kids could potentially involve a total payment to the Home Office of £27,000 upfront from October, once costs such as sponsorship licence fees and the immigration health surcharge are included. That is over 12 times as much as the equivalent for Canada and over 17 times as much as Germany, and it is similarly uncompetitive for other family arrangements.

Of course, skilled workers from the EEA are able to work in any other EEA country without paying a penny and with no need for the stress and uncertainty of a visa application. So if there is a skilled and sought-after French worker, that person can go to Dublin without paying a penny, no questions asked, but to get to Belfast they will need to pay many thousands of pounds and endure a Home Office visa process. It is a perfect incentive for skilled workers to go elsewhere, and it is a perfect incentive for key employers to move their businesses elsewhere. That is why we have tabled new clause 17, so that the Government have to be upfront and open with Parliament about the costs they are imposing on businesses and unskilled workers.

It is also why we have introduced new clause 16, a first step to removing the ridiculous immigration health surcharge, which makes up most of these humungous fees—a nonsensical double poll tax on workers, which is set to increase to £624 per person per year, all of which needs to be paid upfront.

So this Bill risks making it very hard to attract European workers to come to the UK in future, but what of the EU workers who are already here and other EU nationals? Amendment 32 would ensure that all EU citizens who are already here have automatic rights to remain and physical proof of their status. We support new clause 2, which would put in place that same right for looked-after children. Assuming, with regret, that the Government are not about to do that, they need to tell us much more about how they will respond when we wake up on 1 July next year to find an extra few hundred thousand undocumented EU migrants, without rights and potentially subject to removal. What will the Home Office do when a 70-year-old French woman writes to say: “I had permanent residence under the old scheme. I didn’t think I needed to apply, but now the DVLA have refused my driving licence and they say I’m here illegally.” What is the Home Office going to do in such circumstances?

The Government say that they will be “reasonable”, but what exactly does that mean? In Committee, the Minister helpfully explained that he will publish guidance for caseworkers with a non-exhaustive list of examples in which late applications will be allowed. That would be welcome and useful, but the key point is that I want to see it—and I want to see it before we close the EU settlement scheme to applications. Parliament should know precisely how late applications are to be treated before it allows the scheme to close. That is what new clause 34 would ensure.

Two other new clauses seek to push the Government towards fairer treatment of EEA nationals. New clause 36 flags up a new problem relating to EEA nationals who seek to become UK citizens. In fairness to previous Home Office Ministers, when the settlement scheme was established, the Home Office did not insist, as it could have done, on proof of comprehensive sickness insurance in deciding who had been legitimately exercising free movement rights. For some reason known only to itself, the Home Office has now decided to insist on that when it comes to applications for citizenship. That seems an awful miserly approach to take, and I urge the Minister to revisit it.

New clause 21 flags up the issue of those EEA nationals who have a right in law to register as British citizens, and I am grateful for the cross-party support for the clause. We are talking not about adults who have made a proactive choice to come here but about children and young people who were born here or who have been here since they were young, whose parents have subsequently settled or who have lived the first 10 years of their life here. In short, they are children and young people who had no choice over the fact that this is their home country. In law they have just as much right to British citizenship as you, Madam Deputy Speaker, or me; the only difference is that they have to register. When Parliament passed the relevant careful laws, the fee for the process was set simply at the cost of processing, but it has now rocketed to over £1,000—just to access British citizenship. That is profiteering on the backs of children and it has to stop.

Finally, I turn to the issue of the devolved nations. The end of free movement will have drastic implications for Scotland, and if anything the challenges for Northern Ireland will be even more extreme. Home Office disinterest in any notion of a differentiated system has transformed into hostility. New clause 33, which has cross-party support, simply makes the modest proposal that, instead of its usual dismissive attitude, the Home Office looks seriously at the options for addressing issues in Scotland, Wales and Northern Ireland. With the Government refusing to look at any regional variation, some in Scotland had at least taken comfort from the MAC recommendation of a remote areas pilot scheme to encourage migration to areas that have a very small labour market. Originally, the Home Office accepted that recommendation, yet in Committee the Government said it had been abandoned. New clause 24 would restore that provision, and I certainly hope that MPs from all parties who represent constituencies with remote areas will insist that the Home Office thinks again.

It is clearer than ever that the only way we will have an immigration system that remotely reflects our needs and circumstances and fixes the injustices that it contains is if we design one ourselves but, given the Home Office intransigence, I have no problem making the case that control over migration will be a key advantage of independence.

[Edward Timpson (Eddisbury) (Con)]

There is no doubt that the Bill represents an important milestone in both the restructuring of the UK outside the European Union and the fulfilment of the promise that we made to, and that was endorsed by, the British people at the 2019 general election to end free movement. As an overarching policy, it is one that I endorse but, as with any wholesale reform to a national system—in this case immigration—there will be people caught up in the shifting sands created around them who, because of their own personal circumstances, will need specific understanding, attention and support to prevent them from being pushed to the very edges of society. Those people include, as we have heard, children in care and care leavers entitled to ongoing support. To that end, as a former Children’s Minister, I instinctively have sympathy for new clause 2, which proposes the provision of automatic settled status for all children in care and care leavers. In the short time available to me, I shall confine my remarks to new clause 2.

As we transition to a new legal framework for our immigration system, it is only right that, as my hon. Friend the Minister has said previously, we help to ensure that no one is left behind. As I understand it, new clause 2 is an attempt to put that principle into practice for children in care and care leavers, rather than leave it to chance.

--- Later in debate ---

[Dehenna Davison]

One could certainly argue that; I would argue the opposite, but I thank my hon. Friend for his point. Let me give a tangible example. Had a 28-day limit been in place in December, it would have resulted in the immediate release of some foreign nationals who were awaiting deportation, including 29 rapists, 27 child sex offenders and 52 violent offenders, including a number of murderers, and more.

[Stuart C. McDonald]

The hon. Lady is doing a good job of regurgitating what the Government put out this morning—

[Steve Brine]

Patronising.

[Stuart C. McDonald]

Well, it is, almost literally. All of these points can be rebutted. This series of amendments provides for a six-month process in which the Government could transition, so it is not an overnight thing. There would be six months for the Government to deal with foreign national offenders and to have them removed.

[Dehenna Davison]

The point I make is that these are some of the most serious offenders, and, as I said, my constituents would not accept something along those lines. Furthermore, when we look at statistics on current detention times, we see that for the majority those are very short, with 74% detained for less than 29 days. For those held for substantial time periods, there must be a compelling reason, such as public safety. For example, we have the example of a man who gang-raped a 16-year-old, has a history of absconding and has delayed his own removal with five unsuccessful judicial reviews. Lawful immigration detention is needed to keep the public safe, so I cannot support these amendments. My constituents want a fair immigration system but they also rightly expect that system to keep them safe.

Turning to new clause 2—

--- Later in debate ---

[Andrew Bowie]

If that is indeed the case, it is shameful. They should be doing everything in their power, from the position of responsibility they hold, to help and support those in this country who may be unsure about their future status here. They should urge them to apply for settled status, so that they can remain, and contribute to our country as we move forward.

[Stuart C. McDonald]

The hon. Gentleman may rest assured that the Scottish Government are investing a lot of time and resources in encouraging people to take part in the EU settlement scheme. We have our differences on immigration, but will he join me in encouraging the Home Office to think again about having abandoned the remote areas pilot scheme, which would be of huge benefit to lots of constituencies around Scotland—such as his, I suspect?

[Andrew Bowie]

I share the hon. Gentleman’s views on that issue. In fact, I will come to the seasonal agricultural workers scheme briefly in my speech—if I get that far this afternoon.

In Scotland we have a problem—as I said in my speech on 11 February in this place, we are, as a country, simply not attracting enough people to live, work or invest. The Office for National Statistics estimates that Scotland attracted only 8% of immigrants to the United Kingdom between 2016 and 2018. That is fewer than the north-west of England, Yorkshire and Humber, the west midlands, the east of England, the south-east, London or the south-west. We now have a growing population in Scotland and we need it to continue to grow, but even with freedom of movement we are not attracting enough people to make up for what will soon become a declining population, with deaths already outnumbering births. In 2019, there were 7,000 more deaths than births in Scotland and the problem is even starker in rural communities, as the hon. Member for Cumbernauld, Kilsyth and Kirkintilloch East (Stuart C. McDonald) was just saying.

In speaking to new clause 1 the hon. Member for Argyll and Bute was right to draw attention to the effects that the changes to our immigration system will have on the health and social care sector. Although I do not support new clause 1, I urge the Government here and the Government in Edinburgh to work together to find imaginative and creative solutions to the issue, and to work with all stakeholders to see what can be done through the UK-wide immigration system to support and continue to grow the Scottish population, particularly with regard to the health and social care sector on which we rely so much.

Before I move on, it would be remiss of me not to use the opportunity of a debate on immigration to talk about seasonal agricultural workers. I know that I am at risk of sounding like a broken record, as the Minister has heard representations from Scottish Members of Parliament on this issue a few times before, but the fact remains that Scottish agriculture relies on, and therefore simply needs, seasonal labour. A farm in my constituency saw a 15% shortage of seasonal labour last year, which led to an estimated loss of over 100 tonnes of produce. Although I welcome the quadrupling of the seasonal agricultural workers scheme from 2,500 to 10,000 workers—a very welcome first step in this direction of travel—the needs of Scottish agriculture for seasonal labour are, in fact, considerably higher.

Numerous amendments and new clauses have been tabled to the Bill, and no doubt they all have a good intention behind them: Members want to create an immigration system that is fair, humane and understandable. I say in particular to my hon. and right hon. Friends who tabled new clause 29 that although the intent is good, we must allow the negotiations with the European Union time to play out. We have presented an offer to the EU on the future reunion of unaccompanied asylum-seeking children, where it is in the child’s best interests. For the UK to act unilaterally now—as the amendments seek us to do—would undermine the negotiations and make it less likely that we would secure a reciprocal arrangement, which might mean that the number of children we could help would be reduced.

We in this country are rightly proud of the steps that we have taken over the years to provide shelter to refugees fleeing war and persecution from around the world. We have been a beacon of light to the poor and oppressed of the world for generations, and we continue to be that country. We are rightly proud that so many people across the world seek to call the United Kingdom—this country—their home, and I am proud that in moving the Bill forward today we will be taking one more step towards making our immigration system fairer, non-discriminatory and fit for the 21st century.

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

Stuart C McDonald Excerpts

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

I just want to end by saying this: it is the mark of a civilised and decent society that when people have been tortured and persecuted and they flee—to this country of all countries—they get treated well. Why? Because that is who we are. Everybody from Karl Marx through to Garibaldi came to the UK when they ran into difficulties and were persecuted. Can we please today give our commitment that we will open our doors and welcome those people who are proved to be victims of modern-day slavery?

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

It is a pleasure to follow the right hon. Member for Chingford and Woodford Green (Sir Iain Duncan Smith), who always speaks so expertly on issues of modern slavery.

The Lords amendments ask three important questions of MPs. First, are we going to protect and promote fair treatment for families and family unity? Secondly, will we look out for the most vulnerable? And thirdly, do we listen to legitimate concerns raised by communities impacted by migration policy? If the answer to those questions is yes, as it should be, we must oppose the Home Secretary’s motions and support the amendments made in the House of Lords.

Let me start my whistle-stop tour with Lords amendment 2, which is designed to protect families. The fact is that in the UK we have some of the most restrictive family visa immigration rules in the world, splitting up tens of thousands of British citizens and children from their spouses and parents. Sadly, that regime is now to be extended to British citizens and settled persons who happen to fall in love with European nationals. There is now little we can do to stop that, but we can stop the rules applying to British citizens who are already living elsewhere in the EEA with non-UK spouses and their families.

When such citizens left here and established family life elsewhere in the EEA, they had absolutely no reason ever to suspect that their ability to return would be restricted. This is not, as the Government have tended to suggest in some debates, about avoiding or circumventing rules; it is about British citizens having a legitimate expectation of an unrestricted right to return with their family. The Government should respect that expectation. On the one hand, the Government have, to an extent, recognised the particular circumstances of this group by providing a grace period, which is good in so far as it goes, but the grace period does not solve the problem; it simply postpones this deep unfairness for a couple of years. Basically, the Government are saying to many families, “You need to decide by March 2022. You can come back before then, uprooting your family, even in the most difficult of circumstances; otherwise, you will need to stay away altogether.” What the Government should do instead is simply remove the unfairness altogether and exempt this fixed and finite cohort from the rules forever. I really cannot see why that is such a difficult ask of the Government.

Lords amendment 4 is also about the importance of family unity. It is about protecting some of the most vulnerable people out there: people, including unaccompanied children, seeking asylum. It is not just common sense but common decency that says that this is the right place for an asylum claim to be considered if the applicant has a family connection here or if it is in the best interests of a child. As Lord Dubs said in the other place, this is not about the UK taking responsibility for all unaccompanied children; it is about taking our fair share of responsibility.

The Dublin system is far from perfect, but so many families have benefited from it, and indeed the UK has benefited from the system as well through the contribution that those asylum seekers and refugees have made. Alternative options in immigration rules, such as the exception route, are way too limited in scope and just will not do as an alternative. Whatever is or is not happening with negotiations, these people should not be the victims or the latest bargaining chips.

Lords amendment 3 would benefit another vulnerable group—children in care and care leavers—by fast-tracking their access to the settled status scheme. It would allow all children in those groups to proceed to fully settled status, rather than creating another cliff edge for a later date with pre-settled status. The Government have themselves acknowledged—the Minister acknowledged it today—that fewer than half of eligible children in those categories have applied to the settlement scheme with just eight months left to go.

The new approach in the Lords amendment is a practical, reasonable and now, I would say, urgent compromise, after Government arguments against an earlier iteration of the amendment that referred to deemed leave. It is just a practical way to assist the Government in achieving as broad a reach as possible for the EU settlement scheme. Having said that, I echo what Lord Dubs said when moving the amendment, which was that local authorities and the Home Office must also make sure that children entitled to British citizenship have full access to that without unnecessary fees and barriers. Although welcome, it is not enough for the Government to state that late applications from these groups would be accepted; although that is better than not accepting such late applications, we should be doing everything possible to avoid any period of their being undocumented, and all the huge difficulties and stresses that that can entail. So we support this amendment, and my amendment (a) would simply increase its scope to include another group of care leavers under legislation in Scotland, something that the Scottish Government have written to the Minister about.

Lords amendment 9 relates to a group of people who could not be any more vulnerable: the victims of the awful crimes of modern slavery. I pay tribute to Lord McColl and various other members of the all-party group on human trafficking and modern slavery, including the right hon. Member for Chingford and Woodford Green, for their relentless pursuit of this issue. Our party will always support immigration leave being granted where that is required for such victims to put their lives back together, and that is exactly what Lord McColl’s amendment seeks to do. I agree with the observations of the right hon. Member for Chingford and Woodford Green—I was listening to the exchange between him and the Minister, and we will follow the progress in that regard—that we need to go further still. There are rights being lost for the victims of modern slavery from the European economic area, and we have not got ourselves into a place yet where those rights are being adequately replaced.

On the detention amendments, too many victims of modern slavery, far from being given a short grant of leave to remain to help rebuild their lives, end up instead in our hideous immigration detention estate, along with scores of others who should never be there. During the pandemic the numbers detained have dropped significantly and we should be aiming to keep numbers as low as possible. As the Minister said, detention should be a matter of last resort, and it should be for the absolute minimum period necessary, but the figures show that a majority of people detained are simply released again into the community. It is a badge of shame that the UK continues to be an outlier in failing to place any defined limit on detention. We are dealing with basic but fundamental principles: the right to liberty and the requirement for speedy judicial oversight of any deprivation of liberty.

Lords amendments 1 and 5 highlight the Government’s failure to listen to serious concerns. As we have heard, Lords amendment 1 flags up the huge danger that an end to free movement and the design of the future immigration system pose to the care sector. It is similar to an amendment tabled when this Bill was first in this place by my hon. Friend the Member for Argyll and Bute (Brendan O'Hara). It is totally wrong to talk of cheap labour undercutting the resident workforce here; we should be expressing our gratitude for the amazing work that EEA citizens are doing in our social care workforce. The danger to the care sector has been spelled out by the sector and by the Government’s own Migration Advisory Committee, not just last week but repeatedly. Yes, the long-term future of care will require greater investment and better pay, but the Government have shown no indication or inclination to suggest that they are going to fix that any time soon, never mind in the two and a half months between now and the end of free movement. So to take this step in the middle of the coronavirus pandemic is just jaw-droppingly reckless. As the MAC said, ending free movement will

“increase the pressure on the social care sector, something that would be particularly difficult to understand at a time when…care”

is so

“central to the… pandemic frontline response.”

The Government are not listening to the MAC, but perhaps a review that would follow this amendment would force them to listen.

Finally, let me close by discussing Lords amendment 5 and paying tribute to those in the3million campaign group for their perseverance, even when it seems that the Government do not listen. Now their modest ask is that they are not used in the Home Office’s moves to go digital; they are simply asking that, like everybody else, they are provided with the physical means of proving their status here. The Minister referred to the example of Australia, but it spent five to 10 years trialling that system with a physical document as back-up. This is first about technology: the fact that someone’s legal status and rights can be verified only by a Home Office system, and all the risks inherent in that.

[Dr Julian Lewis]

In support of what the hon. Gentleman is saying, let me say that it is not that millions of these documents would have to be issued; they would be issued only to people who felt the need to request them.

[Stuart C. McDonald]

Absolutely, and it would be the perfect trial of the Home Office system; if it really works as the Home Office anticipates, there will not be a demand for it. If the Home Office has confidence in the system, it should have nothing to fear from this. It is about not just technology, but human nature. We know that discrimination is a feature of the hostile environment policy, as private citizens are forced by the Government to do checks. They face harsh penalties if they get those checks wrong, so they will, as a result, play it safe. The danger is that a property will be let to, and a job will be offered to, a person with a passport and a visa, instead of to a person with a piece of digital code, all other things being equal. The3million is simply asking to have the same reassurance that everybody else has access to, and we should provide that.

The amendments could have a transformative effect for many marginalised and vulnerable people. They would enhance family unity and provide additional reassurance for those most directly impacted by Brexit. They could be a small silver lining on what we regard as an awful Bill. We should stand by the House of Lords’ amendments.

[Karen Bradley (Staffordshire Moorlands) (Con)]

I rise to speak to a number of amendments. I declare my interest as co-chair of the all-party group on human trafficking and modern slavery, which I chair with the noble Baroness Butler-Sloss from the other place.

I will not repeat what my right hon. Friend the Member for Chingford and Woodford Green (Sir Iain Duncan Smith) said, because I agree wholeheartedly with every word, but, if I may, I will add to his comments. Just today, the organisation ECPAT published a freedom of information request which found that just 28 children who were confirmed victims of trafficking were granted discretionary leave to remain in the UK between 2016 and 2019. I therefore say to the Minister that the statistics do not stack up with the words we are hearing from the Dispatch Box. I know he is a good man and he wants to do the right thing, but we need to deliver as a Government so that the statistics back up what is being said.

The key point here is that we want to see prosecutions. We will not break the cycle of this horrendous crime if we do not bring the perpetrators to justice. That means having victims here in the United Kingdom who are able to testify, able to give evidence and able to bring the perpetrators to justice. It is incredibly important that the Government bear that in mind, because, as with all hidden crimes, without support given to the victims, who are the most vulnerable people imaginable and who have been through the most hideous experiences, we will never break the cycle and bring the perpetrators to justice.

I urge the Minister not just to support what my right hon. Friend the Member for Chingford and Woodford Green said about support for victims, but to implement all measures from the Modern Slavery Act 2015. That was an excellent, groundbreaking and world-leading Act—we are using lots of clichés—but so much of it has not yet been implemented. If it was implemented fully, we would see so much more success with prosecutions, which is what we all want.

I will speak very briefly on Lords amendment 3. I urge the Government to deliver on this matter. Communication is absolutely key. We need to ensure that people who are entitled to claim settled status know about it. The international reputation of the United Kingdom is at risk here. Getting this wrong will not enhance the view of us by others in the world. We need to make sure that we get it right.

I want to focus the majority of my time on Lords amendment 4. I thank all Ministers for their engagement over the weekend. I spoke to Minister on the Front Bench—the Under-Secretary of State for the Home Department, my hon. Friend the Member for Torbay (Kevin Foster)—and to other Ministers in the Home Office. I know there is concern to make sure we get this right, but again it goes back to the point that we must help the victims, because we can never break the cycle of crime that is getting people to the point where they are in Calais, Dunkirk and Zeebrugge unless we can help the victims.

I gently say to the Minister—he is not guilty of this, but I gently say it to all Ministers—that we must not think of victims as good victims or bad victims. When a constituent who has been the victim of a fraud or other crime comes to our surgery, we might well think to ourselves, “Well, buyer beware, and you should have realised when this too-good-to-be-true offer was put in front of you. Maybe you should not have accepted it or given your bank details,” or whatever else it might be. However, we do not judge. We do not say, “We are not going to take your case, because you’re a bad victim who brought it on yourself.” Instead, we say to our constituents, “Of course we will take your case to Parliament. Of course we will raise it with Ministers. Of course we will take it to the highest authorities.” The same applies to the victims of traffickers. If somebody has been trafficked to Calais, Zeebrugge or Dunkirk, it is because they believe there is a chance of a better life. Whether they are educated and should have known better or whether they are very vulnerable victims, they are still entitled to be listened to and heard. It is clear from so many hidden crimes that until victims are believed and listened to, we cannot break the cycle.

--- Later in debate ---

On Lords amendment 2, look, my constituency voted 70% to leave the European Union. One reason it did so is that it wanted an immigration system that was a fair playing field. How is it fair when we create a two-tier immigration system that favours one group over another? That is my concern. Under the EU system, I could go to Paris and meet someone, have a family and bring everyone over, but if I met someone from outside the EU or the EEA, they would be under the points-based system. I do not understand how that can be perceived as fair.

[Stuart C. McDonald]

Will the hon. Gentleman give way?

[Shaun Bailey]

I am really sorry, but I have not got the time. I am more than happy to pick up with the hon. Gentleman outside the Chamber if he wishes. [Laughter.] I am always open to a debate, Mr Deputy Speaker. I have been very open-minded in this place.

I am conscious of time, so I will turn to Lords amendment 5 on the IT system. It is important to have this discussion because one thing we have noticed during these times is the digital disconnect—the digital lockout. Hon. and right hon. Members on all sides of the House have pointed that out. I accept the arguments advanced by my hon. Friend the Minister on the merits of using a digital system, but we need to be really careful that we do not lock a generation out.

I know from my area that there are many people who do not have access to computers and digital. There is a reliance more widely across Government on digital—obviously, we are going into the future and it is going to be there—but we cannot lock people out. From discussions with the Minister, I am heartened by the way in which the Department is open to being agile in that space, but we need to be mindful that we cannot lock out a generation.

I want to wrap up my comments, because I am conscious I have only 30 seconds left, but I will just say this. I stood on a manifesto in my constituency to get Brexit done. I stood on a manifesto to bring in a fair immigration system that my constituents felt ultimately stuck by that principle of fair play. I believe the Bill, unamended, does that. However, there are operational points, which I am sure the Minister will pick up in his winding-up speech, that we need to address. If we do that, we can be absolutely sure that we refine this and make it work for that sense of fair play that my constituents voted for.

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

Stuart C McDonald Excerpts

Consideration of Lords amendments
Wednesday 4th November 2020 Commons Chamber

[Tim Loughton (East Worthing and Shoreham) (Con)]

I rise to speak in support of Lords amendment 4B. I was disappointed to hear the Minister dismiss it as just well intentioned. I think it is absolutely essential. With just eight weeks to go before the Dublin arrangements for family reunion fall, we have had the tragic drownings in the channel recently; mercifully, but surprisingly, such cases are rare.

Here we go again. This is the last remaining amendment that has come back from the Lords, and it has done so with a vengeance. It was a big defeat for the Government in the other place, by 320 votes to 242. Lord Dubs has led the charge on this ably and eloquently over many months, and he spoke with huge passion. The debate in the other place was just about financial privilege; as he put it, that

“falls short of being humanitarian and falls short of respecting the opinions of this House.”—[Official Report, House of Lords, 21 October 2020; Vol. 806, c. 1595.]

Many in this House think we must do better, and I find it extraordinary that the Government are still digging their heels in for the sake of about 500 highly vulnerable children.

The Government have produced their own amendment. I have no objection to it; it is perfectly innocuous. It commits to a review of safe and legal routes, and that is welcome. It is the least that can be expected, however, because it is what the Government have promised all along in the light of the welcome overhaul of the immigration system and the continued suspension or non-renewal of previous safe and legal routes. Simply adding the Government’s amendment to the Bill will not guarantee the replacement for the Dublin family reunion scheme that we have been promised for so long—despite the fact that, as the hon. Member for Halifax (Holly Lynch) has said, there is no negotiating mandate from EU member states.

The amendment gives no timescale for when measures may be introduced, if they are to be. Neither does it give details about how extensive a replacement scheme may be, given that the Government’s separate refugee family reunion scheme is much more restrictive about family members who can reunite. Part 11 of the rules applies only to pre-flight children seeking to reunite primarily with parents, and provisions on reuniting with uncles or aunts, for example, are subject to very strict criteria and high evidential thresholds.

Let us look at those thresholds by considering the ability of a young teenage boy on the Greek islands to reunite with an aunt or uncle in the UK—a case that we raised with the Minister in the Home Affairs Committee this morning. The Minister made it sound as though that would be no problem, but it will not work in practice for most cases. That child would have to apply under rule 319X, which technically allows children to join uncles, aunts, cousins, siblings or any other family member who is not a parent and who has the refugee status of humanitarian protection. However, the requirements that have to be met are very onerous, and there are strict evidential requirements.

The child would be able to apply under 319X, but only if the uncle or aunt is a refugee, not if they are British or have other status, unlike in the Dublin regulations. The child can apply only if the uncle or aunt can maintain and accommodate them. That is a very high threshold, and it is much higher than the one in Dublin. The child can apply only if they can show that

“there are serious and compelling family or other considerations which make exclusion of the child undesirable”—

that is a very high test that is hard to meet, and there is no such test under the Dublin regulations—

“and suitable arrangements have been made for the child’s care”.

The child can apply only if the uncle or aunt can afford the £388 fee to make the application. The uncle or aunt cannot be a refugee with indefinite leave to remain; they must only have limited leave to remain as a refugee. That is an absurdly high bar to meet, and I suspect the Minister knows it. Frankly, it is no substitute for the safe and legal routes that are available now, which have worked well and have been responsible for saving hundreds of highly vulnerable children.

That was the only alternative scheme that the Minister could offer the Home Affairs Committee this morning. He claimed that some 7,400 refugees—it fell to one of the officials to look this up on the computer in front of them—had been issued family reunion visas in the year to March 2020. But they are from outside the EU. The scheme is welcome, as is the fact that we have brought those people in. The Government are to be applauded for targeting some of the most vulnerable families and children, who are genuine refugees from some really dangerous parts of the world, and that has worked exceedingly well. They are all from outside the EU, however, so the scheme does absolutely nothing for the children we are talking about. As things stand, on 1 January 2021, an unaccompanied child in a squalid French refugee camp or on the streets of Italy,  or any of the 1,600 unaccompanied children on the Greek island of Lesbos—where a refugee camp recently burned down, as the hon. Member for Halifax mentioned —or a child orphaned because their parents were killed by a bomb in Syria, by terrorists in Afghanistan, or by disease or famine in sub-Saharan Africa, will have no obvious mainstream means of applying to join a last remaining sibling, aunt, or other relative in the UK. Safe Passage, to which I pay great tribute for its work on this issue, says that some 40% of the cases that it supports in France are of siblings trying to reunite. That is the reality.

Given that, I am afraid that all the assurances given by the Minister at the Dispatch Box and at this morning’s session of the Home Affairs Committee pale into absolute insignificance and irrelevance. I have set out what the position will be on 1 January 2021, in eight weeks’ time, unless a deal is negotiated and agreed before then—and a deal on a Dublin replacement is not even being discussed at the moment.

I have asked previously for a serious replacement for Dublin III, and a Dubs 2 scheme; the previous Dubs scheme did an extraordinary job of rescuing 480 very vulnerable unaccompanied children from dangerous parts of the world. I ask the Government, as a last-ditch effort to show their good will and commitment to a practical scheme that we know works, to roll over the terms of Dublin, at least until a new scheme is in place. I also ask them to give the go-ahead to the more than 30 councils across the country that have offered places to over 1,400 refugees like these refugee children, and to provide the financing for that.

We are not talking about a huge number of children. We are, however, talking about some of the most vulnerable children, who find themselves in hopeless and dangerous circumstances through no fault of their own—the sort of children we have a proud record of helping, and the sort of children whom we helped through the Dublin scheme, and can continue to help if the Government will make this concession. The Lords amendments would achieve that. Let us not let those children down.

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

It is a pleasure to follow the hon. Member for East Worthing and Shoreham (Tim Loughton). We provide safe, legal routes so that fewer people feel compelled to try the more dangerous alternatives, with all the tragic consequences that they can entail, as we saw recently. The simple fact that should determine how we vote tonight is this: if the Government successfully resist Lord Dubs’s amendment, there will be fewer, not more, safe, legal routes for people from the start of January.

Bilateral agreements that might replace some features of Dublin are months, if not years, away. There is no prospect of a negotiated settlement with the EU on this issue by the end of December, so in just a few weeks, people who could previously have reunited with family members in the UK will not be able to. They will turn to people traffickers and smugglers instead, or attempt other dangerous crossings themselves.

The Minister has pointed to the domestic immigration rules on family reunion. While some who will lose rights under Dublin will be able to use those rules, very many will not. Those domestic rules are indeed very different from Dublin and more restricted in scope, and often include significantly more difficult legal tests and evidential hurdles, as the hon. Member for East Worthing and Shoreham set out.

I think the Minister knows that the domestic rules are not a substitute for Dublin, so he pointed to the possibility of a review. I thank him for speaking to me about that earlier this week; we will engage constructively with that, but the offer of a review is too little, too late. It simply holds out the possibility that something might appear further down the line to fill the gap left by the loss of the Dublin rights. First, we should be sceptical about whether anything robust enough will ever appear. Even the Government’s proposal to the EU for a post-transition successor to Dublin was in reality a significant watering down of Dublin, under which children’s rights would be subject to the Government’s discretion and appeal rights would be abolished, while other individuals would lose their rights altogether.

Secondly, even if the Government were to come up with something acceptable down the line after this review, the gap between the start of January and that replacement appearing will be hugely damaging in itself. People are not going to wait to see what might happen. From January, with the safe Dublin route closed, more vulnerable people in Europe with family here in the UK will be tempted by and driven towards the traffickers and the dangerous routes. If the Government want a sensible compromise, and it has already been suggested a couple of times in this debate, at the very least they should offer to keep the Dublin routes open for now until the promised review takes place, and alternative proposals come forward and are approved.