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

Stuart C McDonald Excerpts

Thursday 14th February 2019 Public Bill Committees

[Kate Green]

Q But you do not need to check their right to work after that.

James Porter: No.

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

Q Most of my questions have been answered, but I have a couple of short ones. The Bill seeks to end free movement. Is it the NFUS position that continuing free movement would be a better course of action?

James Porter: Yes.

[Stuart C. McDonald]

Q Because it has worked well for your members?

James Porter: The MAC report—it is not just me saying this—recognises that there is no negative effect on wages from free movement. It is pretty much neutral; people coming in are not forcing down wages. The MAC also recognises that there is a shortage of labour in agriculture particularly, and it suggests that there should be a seasonal workers scheme to make up for that. The MAC recognises that we need labour coming in from abroad, but it still thinks it should be difficult for us to employ that labour. Yes, I could not agree more. The NFU position is clear: we believe there should be ongoing free movement of labour.

[Stuart C. McDonald]

Q Do you know how many of your members have experience of being tier 2 sponsors?

James Porter: No. I certainly do not, and I do not know any who do. There might well be some, but I am not aware of them.

[Stuart C. McDonald]

Q Finally, some of the witnesses in Tuesday’s session were concerned about the prospects of exploitation in a minority of cases because, if workers were tied to a particular employer or were towards the end of a visa that lasted for only a year or less, there was limited prospect of anyone else taking them on. One solution might be to have a multi-year visa so people at least have the opportunity to come back for a future season somewhere different.

James Porter: That sounds quite sensible. We had the SAW scheme previously, and we worked with it until it was ended when the EU accession countries came in. The agencies are quite closely on top of communicating with the people they place on farms, but I can understand that if someone was compelled to stay on one farm, it might be quite difficult for them to speak out if they did not have alternatives. I am sure there may be ways of trying to make that simpler. Perhaps if they received a visa to work in agriculture and were not compelled to stay in one place, that would give them a bit more freedom if they were not happy where they were.

[Nic Dakin (Scunthorpe) (Lab)]

Q Going back to tier 2 visas, at the moment the fee to recruit a tier 2 worker is more than £1,000. If that type of system went forward, would that present any difficulties, or does that seem a reasonable level?

James Porter: One thousand pounds per seasonal worker?

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[Kate Green]

Q Those who are more highly paid, and therefore expect a higher pension, might think about it more as well.

Professor Peers: Of course that is a possibility, although I am sure that people on every pay level are concerned about pensions. It is bound to factor into people’s considerations, although it is hard to quantify. I am sure that someone has studied it in detail, but I have not. However, it will undoubtedly be a factor, and it is one reason why the first regulation the EU ever adopted, in 1958, was on social security co-ordination. That was precisely the reason why they did it—plus, it was a treaty that was ready to be copied into regulation. There has been so much case law on it over the years because of the importance of social security co-ordination to labour mobility.

[Stuart C. McDonald]

Q Can I ask about clause 2, which relates to Irish citizens? I think everyone welcomes the inclusion of the clause. However, we heard evidence earlier this week that there are perhaps other issues for Irish nationals that we should cover, and that the clause does not go far enough to protect their position. Do you have any thoughts on that?

Professor Peers: First of all, I agree that it is useful to have the clause there. I think there was a general assumption in some quarters that we did not need to say anything on Irish citizens, because they were covered, although my colleague in Leicester, Bernard Ryan, questioned that over the years. It is now there in the legislation, and it is useful to have.

However, having looked at that recently, I think the question of family reunion might arise. Are Irish citizens covered by the general appendix EU rules on family reunion as the Government intend to implement them in event of no deal, where there would be a shorter period in which the EU rules on family reunion apply? Does their being covered by those rules depend on whether they apply for settled status? There might be an answer to that that I have missed, but that question certainly arose for me.

That is not just about people who have non-EU citizens as family members, about people who have EU citizens as family members. After a no-deal Brexit, EU citizens would be coming here on a limited basis, according to the Government’s plans on limited three-year permits. Someone might be in a better position if they are here as a family member, so it would be useful to know whether such people would end up being covered as family members. Perhaps that will be clearer when we get further changes to the immigration rules to implement the no-deal plans. I have checked this afternoon, but I have not seen that implemented yet. It would be useful to see it.

[Stuart C. McDonald]

Q Turning to the settled status scheme, you spoke earlier about trying to put at least the central elements of the settled status scheme and the rights for the 3 million, to use that expression, in the Bill. People have also given evidence that the system should be declaratory in nature, rather than people having to apply for something before they have any rights. Do you agree with that?

Professor Peers: In an ideal world, yes. However, given that it is the Government’s intention to end free movement, the difficulty will be how to distinguish between EU citizens who are here on a free movement basis before Brexit day—or the end of whatever further period we might have—and those who come after that period and who do not have ongoing free movement rights. How do you distinguish between them if there is not at least some system of registration?

By way of a compromise, it might be useful to make it clearer that settled status is a registration system, rather than an application system, because I think that a lot of people were unsettled by its being described as an application system. I know that the withdrawal agreement says that. It also says that people will have to be given settled status if they meet the criteria, so there is not really any discretion for the Government. Given that, why not simply describe it as a registration system? Otherwise, a lot of people will be concerned about what they see as an implied threat. If we are going to go ahead with it, which seems quite likely, a useful way forward would be to reconceive it.

[Stuart C. McDonald]

Q Are you concerned, as things stand, about this cut-off point? Are you concerned that however well the Home Office does in registering as many folk as possible, tens of thousands—if not hundreds of thousands— will miss that deadline? Can you see a case for scrapping the deadline altogether, or for having some other compromise to prevent, for want of a better word, a Windrush-style situation from arising again?

Professor Peers: There is a case for having either a longer deadline or no deadline at all, or having some kind of fairly general excuse clause that gives the Home Office a lot of obligations—not necessarily discretion—to accept late applications for quite an open-ended series of reasons. Obviously, there will be people who do not know about it or understand it. I am in contact with people who know the system well and are campaigning about it and so on, but I realise that that is a bubble. There are a lot of EU citizens outside it who will not understand it very well or follow the details, or who will shake their heads and ignore it in the way you might ignore something like an ominous-looking bill. It would be much better to be as flexible as possible about subsequent future registration and various methods of forgiveness and excuses that people might need to invoke.

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

Q My question is about the fact that the Home Office is saying it will grant settled status to someone for two years; I was going to ask whether you thought that was feasible, but I think you have answered that. Do you think the two years the Home Office is granting everybody is feasible? Do you think this can be done in that short space of time?

Professor Peers: It is quite hard to say. This is an app and an electronic process, but that is still a lot of people to go through the electronic process. I do not know about the technological feasibility of it. The difficulty will be with the people who do not get settled status, the people who do not apply and the people who get pre-settled status and argue that they should have had settled status. There will be those categories of people, and there will be some overlap with people who come in either during the transition period, if we have a withdrawal agreement, or during the unilateral, more truncated transition period if we have a no-deal scenario.

In that case, especially if there is no deal, I can imagine employers or landlords being confused about the situation: are these people necessarily entitled to be here or not? There will be people who could have had settled status but do not have it yet because they have not replied or they are waiting for a reply, as well as people who have a more limited leave to stay and more limited rights. Ultimately, there could be some confusion about telling those two groups apart, and we want to avoid a scenario where employers, landlords and banks start to become nervous about renting to or hiring people who are entitled to be here, especially because for a while we will have a category of people who are entitled to be here but do not have the documentation.

That is the background against which we could end up with a Windrush scenario, because at some point there would be greater demands for documentation and some of those people will not have got it or will not then be able to get it. If they have been self-employed, for instance, they may not have the records of all the work they did on an odd-job basis that would easily satisfy the system that they are entitled to be here.

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[Nic Dakin]

Q What is your view about the proposals outlined in the European temporary leave to remain scheme for EU citizens who arrive in the UK after 29 March, in the event of no deal?

Joe Owen: As I have previously said, it seems like a workaround to a problem. There is a political imperative to do something to end free movement, but practically it is really difficult, because EU citizens need to be given time to apply; you need the White Paper and the new system needs to be up and running. Until there are those two things, it is almost impossible to meaningfully end free movement. We therefore have a system where, for citizens coming into the UK, it will be exactly as it is now; and then after three months, if they want to stay longer, they can apply for temporary registration, which will be largely a security check. There is nothing to enforce whether people have that or not. If I go to my employer at the end of 2020 with a European passport, they do not know if I am someone who has lived here for 30 years and has not claimed settled status yet, or if I turned up a year ago and I have not bothered to do the registration scheme. There is a real difficulty about how this will practically be enforced.

As I said, another issue is what happens at the back end, when the new system comes into place and people who are here—who have either registered or have not registered—apply for the new system. If they are unsuccessful, what happens to them and what is the treatment of them? What kicks in around that, again knowing that large groups of people are likely to be in that situation? People will be expecting that to be dealt with in a way that carries public confidence.

[Stuart C. McDonald]

Q You spoke a couple of times about the possibility that the enforcement system would have to adapt or changes would have to be made to the back end of the system, as I think you referred to it, to do with the large group of people that will inevitably miss the deadline. Can you say any more about how you can see this system adapting? How far can it really change from what it is? What sorts of things do you have in mind?

Joe Owen: There are some questions around built-in safeguards in the immigration enforcement and caseworking system within the Home Office. There have already been quite positive steps, with a team of senior caseworkers being established in response to Windrush last year. They are there to provide a bit more discretion—a second pair of eyes—on some of the difficult cases. How do we build that into the system to ensure that there is a safeguard for people who have characteristics that make you think that the person has been caught up without the right paperwork, but would have been covered under the withdrawal agreement? Addressing some of the structural and process questions—assuming that the policy around the hostile environment or compliant environment of enforcement through public services, landlords and employers continues—would seem to be one way. There is also more that can be done with people who end up being the arm of immigration enforcement, such as landlords and employers, through education and outreach. Those are some of the more processy things, rather than questions of policy.

[Stuart C. McDonald]

Q I can see that that sort of thing can make a difference around the edges, but it is not going to get to the nub of the issues. Fundamentally, the problem is that you will still have hundreds of thousands of people who are simply without rights. Some of the bolder suggestions have been not to have a time limit at all, so that people can continue to apply, or to make the system a declaratory system

Joe Owen: Those are certainly options, if you want to change the timeline. In terms of changing the timeline, if you give EU citizens more time in which to apply, to some extent that is likely to kick on the point at which you can bring in any new immigration scheme, because you need to find a way to differentiate between people when they apply for jobs.

[Stuart C. McDonald]

Q Possibly. People who qualify for the settled status scheme will still have every incentive to do so anyway. That could be one of the incentives: they will not able to get employed until they have the documentation. They still have every incentive to do it, but that would just mean that they could not be removed and subject to everything else.

Joe Owen: Precisely. This is about how you build safeguards into the system, so that the first time something flags up, you do not necessarily get a very strongly worded letter about having to leave the country, but perhaps a reminder that you need to be applying for settled status. There should be different grades of how the Home Office interacts with people whom it thinks are caught up as a result of not having the information. A time limit is one option and a declaratory system is another option. In the past, when there have been big groups of people who do not have status, you could just do a total amnesty and say, “Fine, we are just going to do a declaratory scheme and issue people with the necessary documentation.” All those things are options. Assuming that those big policy choices do not get taken, just in terms of the structures and processes, it is important that there are these necessary safeguards built in as a kind of bare minimum.

[The Chair]

Thank you very much for your time this afternoon, Mr Owen. The Committee is very grateful for the evidence you have provided us with. Our two final witnesses have been sitting patiently throughout the whole of our proceedings, so I think they will be familiar with what will happen.

Examination of Witnesses

Jeremy Morgan and Kalba Meadows gave evidence.

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[Jack Brereton]

Q Do you think there has been a willingness to trade off some of those rights?

Jeremy Morgan: It is very hard to say.

Kalba Meadows: I do not think it is so much a trade-off as the fact that in each country you are coming from an entirely different culture, and the starting point is different. The one thing they have in common is a desire to protect their citizens in the UK. That is a shared point of view.

[Stuart C. McDonald]

Q Based on what you have said so far, what we should be doing is, first, encouraging the Government to seek a ring-fenced agreement on citizens’ rights and, secondly, setting out in this Committee strong rights for EU nationals in the UK in the Bill, whether there is a no-deal Brexit or a managed withdrawal, and, because of reciprocity, you will then see stronger rights for UK nationals across Europe.

Kalba Meadows: Yes.

[Stuart C. McDonald]

So that is a plan of action.

Jeremy Morgan: In connection with ring-fencing, we must not forget that the UK has signed no-deal deals with Switzerland and EEA countries. It is extraordinary that they should not be able to do the same thing with the EU.

[Stuart C. McDonald]

What happens in different scenarios if UK nationals currently in Europe want to come back to the UK with family members? How might whether we are in a deal or a no-deal situation affect that?

Kalba Meadows: Thank you for asking that, because it is a very important aspect that is causing a lot of concern. You are talking about Surinder Singh rights: the right of, let us say, a British citizen who has exercised freedom of movement by living elsewhere in the EU to come back to the UK with their non-British family member. That right will disappear after Brexit whether or not there is a deal. Let us say that we are talking about somebody who is married to a Dutch citizen. Anybody wanting or needing to come back to the UK after Brexit would have to comply with UK immigration laws in order to come back. Surinder Singh rights will disappear after Brexit, whether or not there is a deal.

[Stuart C. McDonald]

Q Does that mean the full gamut of the £18,700 threshold, and so on?

Kalba Meadows: Absolutely. That leads to a situation where people may be forced to make a choice between their family in their host country and their family in the UK. Very often we are talking about people who need to come back to the UK to look after elderly parents.

I can give you a specific example very quickly. Let us call her Nicky. She lives in the Netherlands, where she looks after her husband who has multiple sclerosis. In the UK she has parents in their 80s getting older who will need care, and she is an only child. What does she do? She cannot come back to the UK, because there is no way, as a carer, she would earn the amount required in order to bring her husband. She cannot bring two very elderly parents to the Netherlands, because they do not speak Dutch. She is stuck. She has to make an impossible choice.

[Stuart C. McDonald]

Q That is definitely something that we need to address. Finally, how do we put the rights of EU citizens in the UK in the Bill? Do we look to the withdrawal agreement, or to appendix EU of the immigration rules? Are there things that you would want improved, even if we were just transposing them into the legislation?

Jeremy Morgan: You put the withdrawal agreement into primary legislation. That takes you an awful long way down the road. We are not entirely happy with the withdrawal agreement, but it is the best thing out there at the moment.

[Stuart C. McDonald]

Q The withdrawal agreement does not stop us going further. What is your unhappiness with it?

Jeremy Morgan: It is more on the rights that we have in the EU. We have lost our freedom of movement rights, so the people who Kalba mentioned, who have moved to Europe—not necessarily to the Netherlands or to Luxembourg—have lost their right to move around. Many of them move there precisely because it is a very mobile market. People with IT skills, for example, work a two-year contract in one country and go to another. There are so many British people who have taken advantage of that, made lives for themselves, and ended up, in the course of that, picking up a family from one of the countries they have stayed in.

It has become a very complex system. Taking that right away from them is very serious indeed. The British do not have it in their gift, although at an early stage in the negotiations, I think in September 2017, the British offered to give EU citizens in the UK indefinite right to return. At present, you are allowed to be away for five years with your settled status, and then you lose it. The offer was to make that a lifetime right to return in exchange for freedom of movement for UK citizens in the EU. That was not accepted by the EU at the time, and has not been pushed as hard as it should have been since, because it is a terribly sensible arrangement.

[Caroline Nokes]

Q Thank you very much for your evidence, and for taking the time to come to see us and to set out your concerns so clearly. Do you think that this Bill is the right place to put citizens’ rights in primary legislation, or do you think that would better be done in the withdrawal Bill at the appropriate time?

Kalba Meadows: There is a timing issue, in that the UK may leave the EU in six weeks with no deal. That does not leave very long to legalise the rights of British citizens living abroad. If we know that the EU27 states are looking for legal guarantees for their own citizens living here, we do not have very long to do it. They will be looking for those in order to put into place their own legislation. I would have concerns about leaving it too long.