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

Stuart C McDonald Excerpts

Thursday 28th February 2019 Public Bill Committees

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

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

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

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

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

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

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

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

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

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

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

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

[David Duguid (Banff and Buchan) (Con)]

A number of constituents or residents in my constituency have come to me with the kinds of questions that the hon. Gentleman illustrates, and I, with my limited experience—certainly in comparison with his—have been able to clarify a lot of those cases as their Member of Parliament. Is that not something that we should all be doing as Members of Parliament?

[Stuart C. McDonald]

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

[Nick Thomas-Symonds]

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

[Stuart C. McDonald]

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

[David Duguid]

To clarify, I was advocating not that Members of Parliament should provide legal advice, but that they should signpost constituents to the relevant guidance on the Government website, for example.

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[Stuart C. McDonald]

That is all fair enough but, ultimately, the point remains that all of this is incredibly difficult. Nationality and immigration law are complicated, and the settled status scheme, although it is straightforward in principle, has a number of complexities. Legal aid is essential.

We are talking about fundamental issues to do with human rights and citizenship—the hon. Member for Torfaen talked about Windrush earlier—and all the factors together make legal aid imperative. I am glad that we still have good legal aid coverage for immigration matters in Scotland, and I very much think that that should be the case throughout the United Kingdom.

[Afzal Khan (Manchester, Gorton) (Lab)]

Briefly, in the light of the two earlier speakers declaring their interests, I declare that I am a solicitor and that I practised immigration law, although I do not do so currently.

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[Afzal Khan]

I will speak to amendments 17 and 32, which are in my name. I support amendments 38 and 39, which have been tabled by the hon. Member for Cumbernauld, Kilsyth and Kirkintilloch East.

On amendment 32, the Bill and the White Paper do not address the many deep-seated problems in our broken immigration system, but instead subject a further 3 million people to it. The Windrush crisis laid bare the extent to which the hostile environment policy impacts on human rights; British citizens were detained and deported, and the Government have acknowledged that that was utterly wrong. I will return to the need for a full review of all Windrush cases, before the Bill is enacted, when we debate amendment 16.

We have heard the opinions of several experts on the danger of a repeat of Windrush for EU citizens, and we need a two-pronged approach to avoid that. First, we must ensure that the rights of EU citizens are enshrined in primary legislation, and that there is no unnecessary cut-off for applications for settled status—an argument I will elaborate on when we discuss the new clauses. Secondly, we must address the root cause of the Windrush crisis: the hostile environment policy.

As the spokesperson for Liberty set out in our evidence session, the impact of the hostile environment goes beyond even the Windrush scandal; it reverberates throughout people’s lives. Children are afraid to go to school, sick people are afraid to go to hospital and victims of serious crime are afraid to report them to the police. Our public services have been co-opted, with doctors, teachers and landlords turned into border guards.

The hostile environment does not only affect migrants. A report by the Joint Council for the Welfare of Immigrants shows that inquiries from British black and minority ethnic tenants without a passport were ignored or turned down by 58% of landlords in a mystery shopping exercise. I need not remind the Committee that a large number of BME British citizens will be caught in this policy. A number of independent bodies have recommended that the Government review the hostile environment. The Independent Chief Inspector of Borders and Immigration found:

“Concerns about right to rent’s impact on racial and other forms of discrimination by landlords, exploitation of migrants and associated criminality, and homelessness, have been raised, repeatedly, by the Joint Council for the Welfare of Immigrants (JCWI), Crisis, Migrants’ Rights Network and others”,

but the Government did not complete an evaluation of the pilot before rolling it out, nor did they attempt to measure its impact once it was fully rolled out. The independent chief inspector found that overall,

“the RtR scheme had yet to demonstrate its worth as a tool to encourage immigration compliance.”

Internally, the Home Office has failed to co-ordinate, maximise or even effectively measure the use of the scheme. Externally, meanwhile, the Home Office is doing little to address stakeholders’ concerns. The National Audit Office found that the Government failed to fulfil their duty of care when introducing the hostile environment. Its report said:

“In its implementation of the policy with few checks and balances and targets for enforcement action, we do not consider, once again, that the Department adequately prioritised the protection of those who suffered distress and damage through being wrongly penalised, and to whom they owed a duty of care. Instead it operated a target-driven environment for its enforcement teams.”

The Government have recognised the need for an extensive review. After one of my parliamentary questions exposed the scandal of the Home Office’s requiring people who applied for visas to supply DNA evidence, the Home Secretary committed to a wide-ranging review of those “structures and processes” in the Home Office,

“to ensure they can deliver a system in a way which is fair and humane.”

That was back in October 2018, and we have heard nothing more about it since then. The Labour party is clear that we cannot have a “fair and humane” immigration system that respects human rights until we have repealed the hostile environment in its entirety. The Windrush crisis was caused by systematic problems within the Home Office, and it will take root and branch reform to return us to an immigration system that respects human rights.

I turn briefly to the question of data protection, which is related but warrants special consideration. The Data Protection Act 2018 allows an entity that processes data for immigration control purposes to set aside a person’s data protection rights in a broad range of circumstances. As I believe was said during the debate on that Bill, data protection rights help us to hold the Home Office to account. The White Paper indicates that the Government will be using data sharing more and more to enforce the hostile environment.

As Liberty set out, it is concerned that

“the Home Office is really quite a poor data controller, and yet automated data processing is increasingly going to be the linchpin of implementing the hostile environment.”––[Official Report, Immigration and Social Security Co-ordination (EU Withdrawal) Public Bill Committee, 12 February 2019; c. 60, Q159.]

In that context, it is essential that people have some form of redress for data errors, and data protection rights are crucial. We believe that the hostile environment should be repealed, but if it is to be continued, we must at least have effective redress for errors.

The purpose of amendment 17 is to require the Secretary of State to implement the recommendations of the Law Commission’s review of UK immigration rules. In her opening remarks on this Bill, the Minister mentioned the Law Commission, and I welcome that; I hope she will commit to adopting the measures it recommends before the Government make extensive changes to immigration rules as a consequence of this Bill. In that case, we would not press this amendment to a vote.

Many changes to immigration rules have been made in a piecemeal way, resulting in immigration laws being practically incomprehensible. The JCWI pointed out that Supreme Court judges, Court of Appeal judges, immigration experts and immigration lawyers have all said in public that it is almost impossible for anyone to navigate, let alone people who are expected to do so without necessarily having perfect English or legal aid. The Law Commission points out that, on 31 December 2018, the rules totalled 1,133 and are poorly drafted, which the Government recognised by commissioning the Law Commission review. It makes sense to implement the Law Commission’s recommendations and clean up the statute book before making a whole raft of changes for EEA citizens.

The Law Commission’s project of simplifying the immigration rules officially started on 13 December 2017. It held pre-consultation meetings with key stakeholders and other experts, and with the Home Office. The consultation paper was published on 21 January 2019 and the consultation period is open until 26 April 2019. Recommendations will be delivered in a final report “later in 2019”.

Changes that the Law Commission is considering as part of its review include: a less prescriptive approach to the rules; reforming the organisation and restructuring the immigration rules; removing overlapping provisions and resolving inconsistencies; improving the drafting style; and improving the way that immigration rules are updated. We support those changes, and we believe that it makes most sense for them to be incorporated before our immigration rules are overhauled as a consequence of enacting the Bill.

[Stuart C. McDonald]

I will speak to amendments 38 and 39, tabled in my name and that of my hon. Friend the Member for Paisley and Renfrewshire North, which are essentially subsections of the broader amendments that the shadow Minister spoke to. I absolutely endorse his comments, so I will be very brief indeed.

Essentially, the development of immigration policy has not been evidence-based or rights-based. My amendments pose a couple of questions. First, before we set out to apply the immigration rules to many thousands more people, why do we not review them and assess their impact on human rights? Secondly, my amendments ask us to revisit a pretty scandalous immigration exemption inserted into the recent Data Protection Act 2018.

On the first point, the Government tend to argue in their defence that the statutory duties that are in place are sufficient. However, we unfortunately all too often see statutory duties not properly discharged by the Home Office. For example, we heard in an earlier debate about the duty under section 55 of the Borders, Citizenship and Immigration Act 2009. Justice McCloskey said in 2016:

“As in so many cases involving children, there is no evidence that the statutory duty imposed by section 55(2) to have regard to the Secretary of State’s statutory guidance was discharged. I readily infer that it was not. This, sadly, seems to be the rule rather than the exception in cases of this kind.”

Rather than leaving it to statutory duties and guidelines, we want a proper assessment, to make sure that those duties are complied with, and to see how they are complied with.

On the second point, that immigration exemption gives the Home Office sweeping powers to excuse itself or others from fundamental data protections, which are vital to ensuring that people are not subjected to wrong immigration decisions, and wrongly exercised functions and powers, as befell so many members of the Windrush generation. That exemption absolutely ought to be removed.

In particular, the sharing of migrants’ data between public services and the Home Office, and the erosion of migrants’ data protection rights, are some of the most controversial aspects of the hostile environment, turning traditionally safe spaces, such as hospitals and schools, into immigration surveillance services. The policy of sharing NHS patient data with the Home Office eroded the patient confidentiality rights of migrant patients, causing outrage among doctors, royal medical colleges and the British Medical Association. In the light of evidence that data sharing caused migrants to avoid healthcare services and presented a public health risk, the policy was suspended. We need to go further than that and row back on the immigration exemption altogether, which is why I ask hon. Members to support amendment 39.

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[Caroline Nokes]

I thank the hon. Member for Manchester, Gorton for his explanation of the amendments. I will take each one in turn.

Amendment 16 seeks a further debate on the issue of Windrush. It is absolutely right that we deliver on our promise to the people of the UK and legislate to end free movement. It is, further, right that in implementing a future system we must learn the lessons of Windrush. I agree with the hon. Gentleman that that is a crucial point, and that is why, as highlighted on Second Reading, the Government have put in place a number of measures to address it. However, as I have said, we have made a commitment to end free movement and the core purpose of the Bill is to deliver on that purpose. The amendment would put conditions on its implementation, and that is unacceptable. It would have the effect of hindering the Government in that objective, which stems from the EU referendum outcome.

It is essential that the Government can implement change as soon as is practically possible following the UK’s exit from the EU. Part of that change is already in train through the EU settlement scheme. We have been clear that securing the rights of EEA citizens has always been our priority, and we have delivered on that commitment through the implementation of the scheme.

We know that some members of the Windrush generation became caught up in measures intended to tackle illegal migration, because they did not hold the documentation necessary to demonstrate that they could access the benefits and services to which they were entitled. To remedy that, a taskforce was established last April to provide support to members of the Windrush generation who needed documentation to prove their status. The taskforce has issued documentation to more than 2,400 people, who can now demonstrate their right to live in the UK. A further 610 people have subsequently been supported through the Windrush scheme application process. More than 3,400 people have successfully applied for British citizenship under the Windrush scheme.

The Home Office has taken a number of other significant steps to right the wrongs experienced by some members of the Windrush generation. Those steps include the compensation scheme, the details of which have been consulted upon; the result will be announced shortly. In addition, we have commissioned an independent lessons learned review, which has contacted a wide variety of religious and community groups for their input. The review will consider what were the key policy and operational decisions that led to members of the Windrush generation becoming entangled in measures designed for illegal immigrants; what other factors played a part; why the issues were not identified sooner; what lessons the organisation can learn to ensure that it does things differently in future; whether adequate corrective measures are now in place; and an assessment of the initial impact of those measures.

We are committed to taking into account the outcome of the review in designing the future borders and immigration system. The Department is also conducting a review of historical cases, and has therefore already committed significant resources to this work.

[Stuart C. McDonald]

The Minister will be aware that the National Audit Office has been critical of the scope of the review of historical cases and has, in particular, urged the Department to widen the scope of the review to include all individuals who could be in a similar situation to those from the Caribbean—so, people of other nationalities as well. Is the Home Office willing to consider that?

[Caroline Nokes]

Obviously, the Home Office is obliged to consider the comments of the National Audit Office, and it is doing so very carefully.

In addition to the resources committed to this work, the Government are also obliged to look to end free movement as soon as is practically possible. That is the first step in establishing a future border and immigration system that works for the whole United Kingdom. Amendment 23 would amend the commencement provisions in the Bill. The amendment would make the commencement of clause 1, which ends free movement, and clause 5—the social security provision—dependent on 3 million people having applied for, and been granted, status under the EU settlement scheme.

We are committed to securing the rights of resident EU citizens, and we have delivered that through the EU settlement scheme, which will enable us to grant settled or pre-settled status to European economic area nationals and their family members in the UK before EU exit, regardless of whether or not the UK leaves the EU with a deal.

I am pleased that the hon. Member for Manchester, Gorton supports the settlement scheme, and I hope that he and all other Members are encouraging EU nationals resident in their constituencies to apply. However, setting a target for the number of applications that must be reached before the Bill comes into force is not appropriate, for a number of reasons. First, we already have a generous deadline for applications to the scheme, which acts as an incentive for the resident population to apply. Using the power in clause 4, we will ensure that their status is protected before that deadline, so that their rights remain unchanged immediately after exit, avoiding any cliff edge.

Clearly, the EU and the UK commonly agreed that a deadline was the right approach when they provided for it in article 18 of the draft withdrawal agreement. We have been clear about what the deadline will be in both a deal and a no-deal scenario. According to the annual population survey, it is currently estimated that around 3 million EEA nationals are resident in the UK, but even that might well be an underestimate. It would be irresponsible to repeal free movement just because 3 million applications had been granted, which could easily happen before the proposed deadline. A date deadline is public and clearly understood. People can plan their affairs around it in a way that they cannot with an arbitrary figure such as the one proposed in the amendment.

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[Stuart C. McDonald]

That is a slightly unfair characterisation of the amendment, which does not say that we would have to end free movement when the 3 million threshold had been met. We could still wait until the deadline that the Government have imposed. The amendment simply says that the Government should not implement the end of free movement until that number of people have been registered.

[Caroline Nokes]

It is still the Home Office’s position that we regard that as an arbitrary figure. We believe that a deadline that is set as a date is much more easily understood by individuals.

We are running an extensive communications campaign to ensure that people are aware of the need to apply. We are using all available channels to reach our audience, and last year targeted online advertising alone reached more than 2 million people. Our communications activity will be even more visible in the coming months, and we will shortly launch a wide-ranging marketing campaign that will encourage EU citizens to apply when the scheme is fully open. Nobody will be left behind, however, and we are working in partnership with vulnerable group representatives to ensure that we reach everyone. We expect the large majority of EEA nationals to have been granted status by the deadline, but if a person has good reasons for missing the deadline, we will be able to protect their status and enable them to apply afterwards.

Secondly, by requiring 3 million EU citizens to be granted settled status before the Bill can come into force and lay the ground for the future immigration system, we are presupposing that all resident EU citizens will receive indefinite leave to remain, which is what settled status refers to. That does not take into account the fact that some resident EU citizens may not need to apply for settled status. Some may want to leave the UK before the deadline; some will have arrived pre-1973 and already have indefinite leave to remain; and some may want to apply for British citizenship instead.

A significant proportion of EEA nationals who are eligible to apply under the settlement scheme will not have been continuously resident in the UK for five years, so they will not be entitled to settled status. They will be issued with pre-settled status, which gives them limited leave to remain, rather than indefinite leave. Some may then leave the UK without staying to complete the five years continuous residence required for a grant of settled status.

The date on which free movement could be repealed, or retained social security co-ordination legislation amended, would therefore be highly uncertain and operationally unworkable as a result of the amendment. The decision about whether free movement ended would be left solely in the hands of those EEA nationals. To prevent free movement from coming to an end through the Bill, they could simply refuse to apply under the EU settlement scheme, knowing that, as a consequence, free movement would not end.

That would be the antithesis of taking back control. It would put the future immigration system in the hands not of the Government or the British people, but of EU nationals who had already exercised their free movement rights and whose rights were protected, but who could prevent us from ending free movement and delivering on the outcome of the referendum.

Finally, it makes no sense to restrict the commencement of the social security co-ordination provisions in clause 5 based on the number of people who are granted settled status. Rights under the social security co-ordination regulations—for example, the right to aggregate to meet domestic entitlement for specific benefits—are not connected to the grant of leave under the EU settlement scheme. I therefore ask the hon. Member for Manchester, Gorton to withdraw his amendment.

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Division 11

Ayes: 9

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Labour: 7
Scottish National Party: 2

Noes: 10

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Conservative: 10

[Stuart C. McDonald]

I beg to move amendment 37, in clause 7, page 5, line 39, at end insert—

‘(8A) Regulations under subsection (8) may not be made until the Government has amended regulation 12 of the National Health Service (Charges to Overseas Visitors) Regulations 2015 to exempt EEA and Swiss nationals with immigration permission from being charged for NHS services.’

This amendment would prevent the Government from bringing into force those parts of the Bill that subject EEA nationals to the domestic immigration system until EEA and Swiss nationals with immigration permission are exempted from NHS overseas visitor charges.

[The Chair]

With this it will be convenient to discuss the following:

New clause 12—NHS Charges for EEA and Swiss nationals—

‘(1) Any EEA or Swiss national, or family member of an EEA or Swiss national, resident in the United Kingdom shall be deemed ordinarily resident for the purposes of section 175 of the National Health Service Act 2006.

(2) In this section, “family member” has the meaning given in Directive 2004/38/EC of the European Parliament and Council.’

This new clause would prevent EEA or Swiss nationals, and their family members, who do not have settled status in the UK from being charged for NHS services.

New clause 42—Immigration health charge—

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

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

New clause 46—Payment for NHS services—

‘Regulation 4 of the National Health Service (Charges to Overseas Visitors) (Amendment) Regulations 2017 does not apply to EEA and Swiss nationals and their family members.’

This new clause would ensure NHS Trusts do not require payment from EEA and Swiss nationals and their family members before providing NHS services.

[Stuart C. McDonald]

With amendment 37 and new clauses 42 and 46, I seek to provoke a debate about a particularly important and challenging aspect of the trend towards the outsourcing of immigration control and enforcement, namely the role of our national health service. I am trying to push the Government to address certain challenges and problems that have been highlighted by several organisations. I am particularly grateful to Doctors of the World and the National AIDS Trust for supporting the amendment and new clauses.

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[Maria Caulfield (Lewes) (Con)]

The hon. Gentleman makes a valid point. Having worked in the NHS, I know that such checks cause additional pressures. But how does he suggest that the NHS pays for treatment for non-UK citizens? It is a national health service, not an international health service.

[Stuart C. McDonald]

We could do what we did previously, which was to recover the costs after the event. However, as I say, I have tabled these amendments to spark debate. At the end of the day, if it is a choice between risking people’s lives or even causing death, and risking losing out on certain funds after the event, the second of those is the lesser evil. However, it is a difficult issue; I do not have all the answers as to how we should approach it. As I say, that is why the new clauses and the amendment have been tabled.

[Afzal Khan]

What would be said if there was a contagious disease and people were not coming to get the help that they needed?

[Stuart C. McDonald]

The hon. Gentleman makes an absolutely valid point.

I turn to amendment 37, which would prevent the Government from bringing into force those parts of the Bill that subject EEA nationals to the domestic immigration system until EEA and Swiss nationals with immigration permission are exempted from the NHS’s overseas visitors charges. This amendment would mean that all EU migrants with a visa, including temporary workers on short-term visas, are able to receive NHS services free at the point of care. That reflects the current situation of EU nationals living and working in the UK.

The White Paper indicates that EU migrants on short-term visas of 12 months will have no right to healthcare beyond emergency care, and skilled workers and their dependants will be required to pay the immigration health surcharge when making an immigration application to enter or remain in the UK. Good preventive healthcare plays a central role in maintaining a fit and healthy workforce, and the policy to exclude people on short-term visas from all healthcare beyond emergency care establishes a worrying precedent in excluding from NHS services migrants who are legally living and working in the UK.

Those on short-term visas are likely to be in lower-paid jobs and unable to pay for healthcare out of their own pockets. Requiring EU migrants on skilled worker visas and their dependants to pay the immigration health surcharge is unfair and will be cost-prohibitive for some. Payment of the surcharge, which is currently set at £400 per person per year with a discounted rate for students of £300 per year, must be made at the same time as an immigration application, and it has to cover the total cost for the duration of the visa and for all the people named on the application. A person applying for a two-and-a-half-year visa will incur a surcharge of £1,000, on top of any other immigration fees, and a family of four would be required to pay £8,100 for a visa for the same period.

For those on low incomes, the health surcharge will be cost-prohibitive. We are particularly concerned about the impact that the surcharge will have on EU migrants living in the UK when they come to renew their visa, and about the fact that large health surcharge payments will prevent those on low incomes from being able to renew their visa, causing them to lose their lawful stay in the UK. It is also of note that EU migrants who are employed—for example, those on short-term or skilled visas—will be contributing to the NHS through tax and national insurance payments and that, by being required to pay the health surcharge, they will in effect be being charged twice for healthcare.

For those reasons, I have also tabled new clause 42, which would remove the applicability of the health surcharge. The surcharge has doubled this year to what I regard as an unacceptably high level.

[Eleanor Smith (Wolverhampton South West) (Lab)]

I wish to speak to new clause 12, which states:

“Any EEA or Swiss national, or family member of an EEA or Swiss national, resident in the United Kingdom shall be deemed ordinarily resident for the purposes of section 175 of the National Health Service Act 2006.”

When charging for non-residents was first introduced under section 175, it was not meant to add excess costs for that group of people accessing our healthcare. In 2015, costs were introduced that started at £200 for most applicants and £150 for certain groups—for example, students. The fee has now doubled. That means that a family of four would have to pay about £1,000 each in IHS costs in addition to their visa costs.

I am pleased that the Minister confirmed in November that EU citizens who are resident in the UK before it leaves the European Union in March 2019 will not pay the charge, and that the Government have come to an agreement with Switzerland, Norway, Iceland and Liechtenstein that during the transition period their citizens’ rights will be protected. However, it is still unclear what will happen after the transition period has come to an end in 2021 or in the case of a no-deal scenario, After December 2020, a new visa system will be in place that could mean that EEA citizens and Swiss nationals have to pay the immigration health charge.

It seems to be forgotten that most of the EEA citizens and Swiss nationals in the UK are currently employed and are already paying for the NHS through their taxes. Extending the immigration health surcharge to them would mean that they were being charged double for NHS care, which would seem to me an unfair contribution.

That leads me to the issue of the NHS. More than 60,000 NHS workers are EU nationals and, without settled status, they could face the possibility of paying the increased surcharge as well as for their tier 2 work visa. The new system could add further pressures for the NHS, which is currently struggling to recruit the number of healthcare professionals needed to meet the country’s demand.

Labour’s intention is to level rights up, not down. We hope that, after a new immigration system applying to nationals from across the world is introduced, none will be required to pay these charges.

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We are taking clear steps to protect the position of the EEA and Swiss nationals in the UK. We must also act in line with the devolved nature of health policy and ensure that we have the flexibility to respect the outcome of ongoing negotiations with the EU. That is the correct approach, and I invite the hon. Member for Cumbernauld, Kilsyth and Kirkintilloch East to withdraw the amendment.

[Stuart C. McDonald]

This has been a very helpful debate on whether and how we go about charging for NHS services. I am grateful to other hon. Members for their contributions. It is incumbent on all of us to take very seriously the concerns that have been raised by outside organisations that are experienced in the field of healthcare. It is incumbent on all of us as MPs, but also on the Minister and the Home Office, to make sure that the concerns are not just ignored and forgotten. I hope that we all treat them seriously going forward.

I am grateful to the Minister for undertaking to speak to the Department of Health and Social Care about the report that has been flagged up. I will take on board all the drafting tips that she helpfully provided. In the meantime, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 7 ordered to stand part of the Bill.

Ordered, That further consideration be now adjourned. —(Paul Maynard.)