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

Stuart C McDonald Excerpts

Committee Debate: 1st sitting: House of Commons
Tuesday 12th February 2019 Public Bill Committees

[Afzal Khan]

Q On expenditure, are there any further details that you can give us on what you expect, or in which area?

Professor Manning: That kind of scheme was not in our report. We laid out reasons why we were not terribly enthusiastic about it, but it was a feature of the White Paper more than of our report.

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

Q Professor Ryan, I think everyone welcomes what clause 2 does to protect the rights of Irish citizens and their leave to enter, but your written evidence and other submissions that we have received seem to suggest that it does not go far enough. What else should the Bill do to protect the position of Irish citizens?

Professor Ryan: That is correct: I have argued in the written evidence—and I believe they will be saying something similar—that there are some adjustments that one could imagine. As it stands, the Bill does not guarantee equality as regards family migration for Irish citizens. That is thinking especially about Irish citizens who might want to relocate to the United Kingdom: they are not guaranteed to be in the same position as British citizens. That is a provision that could be made—or, one hopes that a commitment could be made that the rules will be framed so that Irish citizens will be treated in the same way as British citizens as regards family migration.

There are questions about the deportation provisions as well. I am not disputing that it should be possible to deport Irish citizens or to exclude them, but we need to recognise that the policy has been to do that only in exceptional circumstances. That is somewhat different to the “conducive to the public good” standard that is usually applied in deportation cases. It is important to get clarity about the intentions going forward as regards use of the deportation power. There is a specific issue about Northern Ireland, because of the Belfast Agreement and the entitlement of people from Northern Ireland to identify as Irish citizens. It is important that that entitlement is not compromised by the possibility of deportation of Irish citizens that is confirmed in the Bill.

I have suggested that it could be done through amendments, but the Government could clarify their intentions in relation to Northern Irish citizens.

[Stuart C. McDonald]

Q A couple of times you have referred to the possibility of things happening in the rules—when you were asked about separating out the immigration White Paper from the Bill. Is that not one of the problems we have in this country—that we leave so much to rules? We have had something like 5,000 changes to the immigration rules since 2010, and that gets virtually no attention in this place. Should we be rethinking how we go about setting out people’s rights and obligations in immigration law? Are you happy enough to see these constant changes to the immigration rules?

Professor Ryan: Immigration policy is complex and it evolves so there has to be a structure that permits that to proceed. Perhaps immigration rules could be drafted differently; I know that work about that is going on. I am certainly not against the idea of having immigration rules, and doing the bulk of immigration policy in that way.

[Stuart C. McDonald]

Q But key rights, for example?

Professor Ryan: Exactly. The question is whether certain guarantees should be written into primary legislation. I suppose that that is what I am asking for.

[Stuart C. McDonald]

Q Turning to the question about the Government’s settled status scheme for EU nationals, one of my colleagues, the hon. Member for Scunthorpe (Nic Dakin) referred to 40 years down the line. The problem would arise sooner, as things stand, because you are talking about a cut-off date of December 2020. It could be June 2021, if there is a deal. The issue then arises that people might miss that deadline. What can be done to avoid that happening—with tens, if not hundreds, of thousands of people missing out on a status that they have a right to?

Professor Ryan: Are you assuming that the withdrawal agreement—

[Stuart C. McDonald]

Q Yes. Well, there are different deadlines, depending on whether there is a deal or no deal. Regardless of that, within the next couple of years tens, if not hundreds, of thousands of people will be passing that deadline.

Professor Ryan: I question why we even need a deadline for applications under the settlement scheme. There will be advantages to individuals to registering through that scheme, regardless. I do not see why we need a hard line that says, if you do not register by x date, then unless you come within some exception that we formulated, tough luck. I do not see why we need a deadline at all.

[Stuart C. McDonald]

Q And the benefit of that would be that in 10 years’ time, if somebody had not realised—for instance, the grandmother about whom we heard earlier; she tries to change house but fails the right to rent check, because she does not have the documentation—she would be able to apply for settled status, whereas as things stand, she would be in limbo.

Professor Ryan: Children are the key test here. A child who is here now is eligible under the settled status scheme. Other people are taking those decisions for them, or failing to register. Even if they are registered, how do they know that and prove it later on? The opportunity for them to come back and make the application much later is a way of fixing any difficulties that arise. It would solve a lot of problems if there were no hard deadline for the settlement scheme.

[Stuart C. McDonald]

Q It would have a similar effect, but probably going slightly further. Just now, obviously, an EU national’s right does not depend on them having a bit of paper or a bit of code—depending on how you do it. They get the rights directly from EU law. Would it be preferable if, in this Bill, we said, “Here are the rights for people who qualify for settled status right now”? They get their rights from the statute and applying to register simply proves they have that right, rather than that they have no rights if they do not have that bit of paper. This, essentially, echoes what happens now for EU citizens: they all have rights whether or not they have a settled status document or anything else.

Professor Ryan: It would be possible to formulate a guarantee in that way as well. I have been focusing on the people, ensuring that individuals are protected without specifying what protections they get. It clearly would also be possible in a guarantee to consider the core rights that would be obtained by the beneficiaries of any guarantee.

[Stuart C. McDonald]

Q Professor Manning, the Government’s White Paper suggests that the proposals, if implemented, could mean that GDP is between 0.4% and 0.9% lower than it would have been otherwise in 2025, which represents a reduction in GDP per capita of between 0.1% and 0.2% in 2025 and a cumulative fiscal cost to the Treasury of between £2 billion and £4 billion over the first five years to 2025. Have you any reason to dispute those Treasury figures?

Professor Manning: I am not sure it is just Treasury—

[Stuart C. McDonald]

Q White Paper figures.

Professor Manning: Yes, of course. It is important to realise that it is only modelling being more restrictive on the EU side. It is not modelling at all the liberalisation on the non-EU side. So it is not modelling the whole package at all.

[Stuart C. McDonald]

Q To follow up on that, the White Paper modelling is based on, essentially, a status quo for non-EEA.

Professor Manning: That is my understanding.

[Stuart C. McDonald]

Q So, then, to try and avoid these costs to the Treasury in GDP and GDP per head, you would have to liberalise non-EEA migration?

Professor Manning: The numbers that you quote make the point we made in our report that neither the costs nor the benefits have been very large. When you take that £4 billion over five years, quoted on the public finances, that adds up to a bit under 25p per person per week for a really quite substantial reduction in migration.

[Stuart C. McDonald]

Q You could do quite a lot with £4 billion. It is easy to be relaxed about £4 billion disappearing from the Treasury.

Professor Manning: I could do quite a lot with £4 billion, yes, but it is under 25p per person per week. You can say that is not a good idea, but you cannot say it is a big negative impact. It is what we said: the impacts, both costs and benefits, have been modest.

[The Chair]

May I remind colleagues that this session finishes at 10.30 am? I have got two people waiting to catch my eye, one of whom we have not heard from before. I also want to give the Minister a chance.

--- Later in debate ---

[Gavin Newlands]

Q Would you care to elaborate on how much more should be spent or is required?

Lord Green: The first thing is to restore the cuts that have been made, but I think they will probably need more than that, because they will have a new situation to deal with. But I am not an expert on the administration of the Home Office.

[Stuart C. McDonald]

Q Do you have any thoughts on how the settlement scheme has been set up for EU nationals who are already there? Do you anticipate any difficulties in making sure that as close as possible to 100% have applied for settled status by the deadline?

Lord Green: There are bound to be problems. You are talking about literally millions of people, most of whom have good English, but not all. There is certainly a possibility—a probability—that by the time the deadline comes, there will be people who have not registered. I listened to what the previous witness said about that.

We will need to be careful that we do not accidentally find that a large number of people have rights that they are not aware of—have rights through their parents that they are not aware of, as one of the Committee members put it. There is a risk there, but that is administration and I am sure that the Home Office will do its best.

[Stuart C. McDonald]

Q Professor Ryan specifically suggested removing the deadline altogether. Do you think that is a sensible proposal?

Lord Green: I do not have a strong view on that, but it does seem sensible to have a deadline, otherwise people will leave it and leave it and never get it done. The deadline helps to get people in and do the registration, so it is at least a line in the sand, but I do not think it should be the end of the world.

[Stuart C. McDonald]

Q The motivation to apply for settled status is that if you do not have it, you will not be able to work or rent, and so on. Even without an official deadline, surely that would be enough in itself. You are saying, “All this will come into force for you on a certain date,” and surely that is sufficient motivation to encourage people to apply in advance.

Dr Greening: I have seen something from the Government in which they specified that the deadline was somewhat flexible, so if there were good reasons why people had not applied by the deadline, they would be treated on a case-by-case basis.

[Stuart C. McDonald]

Q Is that really a satisfactory response, when we are probably talking about a couple of hundred thousand people?

Dr Greening: It is reassuring to see in the White Paper that the Government said:

“The EU Settlement Scheme…will ensure that those who successfully apply for it have a clear immigration status in the UK, safeguarding against what happened”

to some members of the Windrush generation. The Government are clearly aware of the lessons to be learned from Windrush and are applying them in applying the EU settlement scheme. There are bound to be some teething issues and problems.

[Stuart C. McDonald]

Q Two hundred thousand people being unable to access employment or housing or whatever else is not a teething problem, with respect.

Dr Greening: That would be a major problem. I hope that the Government take—

[Stuart C. McDonald]

Lord Green has highlighted the problems in terms of funding for Home Office administration. I think the Home Office is pulling out all the stops and doing its best to try to register as many EU nationals as it can, but even if it achieves a 90% success rate, 400,000 people will still be in a similar situation to the Windrush generation.

Dr Greening: We do have concerns about that. We will be watching closely to monitor it and ensure that it is efficient, that it works for the millions of people who will use it, that it reaches everyone and that it makes sure that no one who has rights loses their rights.

Resources are relevant to that. It is important to note that Lucy Moreton, of the Immigration Service Union, said that immigration enforcement is not adequately resourced at the moment to deal with illegal immigration. Combined spending on Border Force and immigration enforcement has fallen by £100 million over the last three years. The chief inspector of borders has said that the capacity simply will not deal with numbers. Officials have complained to him about security at southern ports being resourced to—

[Stuart C. McDonald]

Q The problem I have is not about enforcement. I do not want people who fail to meet the deadline to be enforced against; I want them to be able to apply and to have their cases processed in time.

Dr Greening: As do we.

[Nic Dakin]

Q I think you were saying earlier that this legislation as it stands, along with the White Paper, is likely to lead to an increase in inward migration. Is that right? That was my understanding.

Dr Greening: Yes.

--- Later in debate ---

[Maria Caulfield]

Q In a new system would you want to see any preferential rights given to EU citizens as opposed to citizens from the rest of the world?

Chai Patel: In an ideal world, people from all countries would be treated equally under the immigration system. What I would be careful about is the fact that we have heard a lot from people who have suggested that Brexit provides an opportunity for us to move to that, but the Government’s plans in the White Paper certainly do not provide that because it specifically states that, of course, preferential treatment will continue to be given to people where trade deals require that to be the case. So, yes, in theory, but at the same time I would be reluctant to suggest that I think that is going to happen.

[Stuart C. McDonald]

Q Mr Patel, you have declared your preference for a declaratory EU settlement scheme, which I think is a very good idea. Professor Ryan’s alternative would be simply to remove the cut-off date for applications. Have you any thoughts about the pros and cons of that argument?

Chai Patel: I think that in effect it is the same thing. I might be wrong if there is no cut-off date. What is someone’s legal status at the end of the transition period or the grace period until they apply? If they are in legal limbo at that stage it seems simpler to grant them the legal right as of law, rather than saying they can apply later and be reinstated, because there might then be a question of what their status was in the intervening period.

[Stuart C. McDonald]

Q That is an interesting point, thank you. We heard Professor Manning talking about some of the challenges or problems with the one-year visas that are proposed in the White Paper, as a stop-gap measure for so-called lower-skilled forms of work. He talked about the potential for exploitation and problems with integration. Have you any thoughts on that type of visa?

Chai Patel: I think that will inevitably lead to exploitation. It contradicts the reasons that the Government have given for wanting to reduce immigration in the first place. Of course, we do not accept all of these, but in theory there is an idea—not borne out by evidence—that immigration reduces people’s rights in the workplace, because immigrants can be treated less well. That only happens when immigrants are given fewer rights. If they are put on short-term visas, that increases the potential for exploitation.

We do understand that there is concern about integration and people wanting more integrated and cohesive communities. We do not think there is any contradiction between immigration and cohesive communities. What we do think is that, if people are required to come here for a year and then to leave, they will not be able to make those community links.

It may well be that people are rightly resentful of people who come in for a year and then leave, having left no long-standing mark. I think people welcome immigration whereby people are able to come to this country to live as people who belong to this country and, if they choose, to stay as long as they want to put down roots and build families here.

[Stuart C. McDonald]

Q On a different question, were you surprised there are no appeal rights for EU citizens in relation to the settled status scheme in the Bill? Or are they expected somewhere else?

Chai Patel: I am surprised. The withdrawal agreement clearly sets out that appeal rights will exist. The Government have said that legislation is required to make those appeal rights a reality, which is why we have not got them in the pilot scheme. Therefore, it seems very strange to us that the Bill does not contain that legislation.

[Stuart C. McDonald]

Q The Government might suggest that the best place for them is the withdrawal agreement implementation Act, or whatever it will be called, but does that leave us with a problem? The Government seem to be suggesting that there will not be formal rights of appeal in the event of no deal. What are your concerns about that?

Chai Patel: That is certainly a concern. All the rights that have been set out for EU nationals under the withdrawal agreement must be available to them in the event of no deal, if it is accepted that those rights are required. Certainly it must be right that people who are denied settled status have the right to appeal to an independent tribunal, rather than having to seek a Home Office administrative review or a judicial review, which is not sufficient to deal with the merits of their case and is very costly both for the Government and for the person pursuing it. There needs to be a simple and fair appeal system in which an independent tribunal can look at the merits of someone’s case when they are denied the right to stay in this country.

[Tracey Crouch]

Q You have argued that the Bill should be withdrawn and should instead form part of a wider Bill that encompasses the future immigration system. How does that sit with the commitment to leave the EU and end free movement as soon as possible?

Chai Patel: First of all, our view is that it would be open to the Government to put forward an immigration Bill that did that very simply, but they would need a plan for the new system. No such plan exists; until it does, ending free movement simply cannot be tenable, for the reasons that we have given. We are not saying that it is invalid for the Government to choose to end free movement. We may disagree about precisely what system will replace it or about whether free movement was the best system in the first place, but that is fine. What you cannot do, however, is end free movement overnight, because that will lead to a situation in which between 3 million and 4 million EU citizens were here with no documentation beyond their EU passport, while new EU migrants were coming in with their EU passport plus some other document. We have in-country immigration checks, and people may want to leave and come back, but they will not be able to until they have been registered and a clear new system has been set out. The Government should have put that forward in the Bill.

--- Later in debate ---

[Caroline Nokes]

Q Is it your contention that we should not have an agricultural worker scheme, and should perhaps seek to do away with tier 5?

Chai Patel: I would have to think about that. Perhaps we can respond in written evidence later. I am afraid I have not thought that through.

[Stuart C. McDonald]

Q One final question. Under the EU settlement scheme, the plan is that people are not to be presented with a physical document but essentially with a bit of code that the employer can go away and check. Does that give rise to any concerns about how that will work?

Chai Patel: Yes. The key reason why discrimination happens under, for example, right to rent is not that landlords, or whoever needs to do the check, are prejudiced; it is the administrative hassle of having to deal with it. It is simple just to check a British passport. By not giving people a physical document, you are creating a massive problem for them in terms of having equal access to work, housing or other things that they might need.

[The Chair]

That brings us to the end of the session. Thank you very much, Mr Patel, for the time that you have spent with the Committee.