Immigration and Social Security Coordination (EU Withdrawal) Bill (Fifth sitting)

Stuart C McDonald Excerpts

Committee Debate: 5th sitting: House of Commons
Tuesday 26th February 2019 Public Bill Committees

[The Minister for Immigration (Caroline Nokes)]

It is a pleasure to serve under your chairmanship, Mr Stringer, and that of your co-Chair, Sir David Amess, who took us so ably through the evidence sessions the week before last.

At the outset, I would like to emphasise the importance of the Bill in delivering the future border and immigration system. It was clear from the EU referendum, from the many views shared on Second Reading and from the Committee’s evidence sessions that people want a fair immigration system that works for the whole United Kingdom—a system that attracts talent from around the globe and allows individuals to access the UK based on what they have to offer, not where they come from.

We heard many important views about the current and future border and immigration systems from witnesses who gave evidence before the Committee two weeks ago, as well as from organisations that provided written evidence. I am grateful to everyone who took the time to provide their opinions. The views that were put forward demonstrated a strong interest in a wide range of immigration issues, as well as in the specific design of the future system. The evidence highlighted the importance of learning lessons from the past and ensuring we get things right.

A clear message emerged about the need to create a fair and simple system, and those are key priorities for me in the design of the future system. As I have said previously, I recognise that the immigration rules need to be made simpler. That is why we have asked the Law Commission to review how the rules could be simplified. I look forward to considering its findings when they are published.

Leaving the European Union means that, for the first time in more than 40 years, we can deliver control of immigration by ending free movement. In its place, we will introduce a new system, which will level the playing field by ending preferential treatment for EU citizens. It will mean that everyone has the same opportunity to come to the UK, regardless of where they are from.

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

I am grateful to the Minister for giving way so early. She has asserted a couple of times that the new system will provide a level playing field for everybody, but the White Paper indicates that nationals of different countries will be treated in different ways. There will, I reckon, be preferential treatment for EU nationals with the one-year visa and for countries whose citizens are already non-visa nationals. Will she clarify that? Is she saying everybody is going to be treated exactly the same, or does she accept that the White Paper in fact does not set out such an arrangement?

[Caroline Nokes]

The Bill certainly does set out that people will be treated in the same way, because it is a Bill simply to end free movement. The White Paper, which was published on 18 December, gives us the opportunity to discuss the future system and how people from across the globe may be treated. It gives us the opportunity to discuss whether trade deals might include treatment within our immigration system. It is important that we have a system that reflects people’s skills and what we need in our economy. This Bill, through which we are seeking to end free movement, is an opportunity to start to provide that level playing field.

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[Afzal Khan]

I agree wholeheartedly with my hon. Friend’s comments. Labour has tabled a number of new clauses to the Bill that would put the rights of EU citizens into primary legislation. We hope that the Government accept those when we get to that point.

The second question is what our new immigration system should be doing in the future. The Bill is incredibly flimsy; it is only 16 pages long, which is extraordinary given that it will mean the biggest change to our immigration system in decades. Instead of putting forward a new immigration system that Parliament can discuss and debate, amend and improve, the Bill grants powers to Ministers to introduce whatever system they like through extensive Henry VIII powers. We were given an indication of what such a system might be like in the White Paper published by the Government in December. In fact, Ministers are under no obligation to use the powers to implement that system. If they implement the system described in the White Paper, it will spell disaster for our economy and our society.

We will go into these matters in more depth in subsequent debates, but expert witnesses at our evidence sessions criticised almost all aspects of the Government’s plans. The £30,000 threshold would be a disaster for business and public services such as the NHS. The 12-month visa would lead to exploitation. Labour has no problem with immigration that would treat all migrants the same no matter where they came from, but that is not the system the Government propose. The White Paper is explicit that there will be certain visas and conditions that will apply only to people from “low-risk countries”—a categorisation that the Government are not at all transparent about. Apart from those two glaring absences, the Bill before us fails to address a litany of problems with our immigration system, some of which we seek to remedy through our amendments.

Before I conclude, I have two questions that I would like the Minister to address. First, under what circumstances would the Government use the powers in the Bill? We have heard that this is a contingency Bill, so if there is a withdrawal agreement and thus a withdrawal and implementation Bill, will the Government use powers in that Bill to repeal free movement? Secondly, could the provisions in this Bill lead to a change in immigration law that affects non-European economic area migrants? Could the Government use the powers in the Bill to amend immigration legislation that affects non-EU citizens?

As the Minister will know, the Government are asking for extensive Henry VIII powers. During our Committee sittings, Adrian Berry, Steve Valdez-Symonds and Martin Hoare, all experts in immigration law, confirmed to me that the powers in the Bill could be used to make legislation affecting non-EU citizens. Is the Minister willing to contradict the experts? Does she agree that, if it is indeed the case that the powers in the Bill could be used to make legislation that affects non-EU citizens, its scope is much wider than the end of free movement?

[Stuart C. McDonald]

It is a pleasure to serve under your chairmanship, Mr Stringer. I thank the Clerks for working their way through a mountain of amendments and making them presentable in the last few days. I thank the various organisations and individuals for their help and ideas for amendments, and I thank the shadow Minister for engaging with us over the last couple of days. Any flaws in the amendments we have tabled are my responsibility alone. Finally, I thank the Minister; she has been very open to discussion, approachable and good humoured, as ever. The fact that I can’t stand the Bill and utterly oppose it should not be taken personally. Hopefully, we will still be able to have some useful and constructive debates.

I will not rehash all the points I made on Second Reading. I love free movement; my party fully supports it and I pretty much believe it is the best thing since sliced bread. I regret that it is in danger of coming to an end. It will leave the United Kingdom in an unusual position historically. This country has, for almost its entire history, allowed certain citizens to come and go, whether EU citizens, Commonwealth citizens or, before that, absolutely everybody. All the evidence is that free movement is beneficial to us, for growth, productivity and public finances. In Scotland, it has transformed our demographic outlook from a country of net immigration to a country of positive migration. The quid pro quo for all this is that we will lose our free movement rights. My family and I have benefited from free movement, as have many Members, including on this Committee. I regret that this Parliament will pull up the ladder behind it.

The challenges of free movement that are often cited will not be solved by ending free movement but by proper labour market standards and enforcement, by integration strategies and by investment in public services. Neither do the justifications for ending free movement stack up. Indeed, it was striking in the Minister’s speech and in the speeches of some Government Members on Second Reading how little free movement and the supposed justifications for ending it were addressed.

It is wrong to say that people voted to end free movement, because it was not on the ballot paper. To argue the contrary is to argue that almost 100% of leave voters were motivated by that alone. That is not the case. This is the Prime Minister’s red line, not the people’s red line. Opinion polls and studies show that if it comes to a choice between a closer trading relationship with Europe and ending free movement, a closer trading relationship wins. Simply repeating ad nauseam that we are “taking back control of our borders” is not an argument.

Now is the most bizarre moment for MPs to consider voting to end free movement. Parliament hopefully is on the verge of taking control. Who knows what trading arrangements may be secured, perhaps involving free movement. A people’s vote is even more on the cards than it was at the time of Second Reading. As the shadow Minister said, the Bill puts the cart before the horse. Let us sort out our negotiating position first, then we can decide what that means for free movement. If the public are happy enough to retain free movement for a closer trading arrangement, it is wrong for MPs to rule it out at this stage. There is no need to rush through the end of free movement, even if we do leave in a month’s time. For those reasons, my party believes that the clause should not stand part of the Bill.

[Kate Green]

It is a pleasure to serve under your chairmanship, Mr Stringer. I echo the comments of the hon. Member for Cumbernauld, Kilsyth and Kirkintilloch East in thanking the Minister for being so open to colleagues in preparing for consideration of the Bill over the next two weeks.

I, too, believe that freedom of movement has been good for our country and particularly for my constituency. We are a proud manufacturing constituency that offers many skilled jobs, and we have relied heavily over the years on the skills and talents of EEA nationals who come to work in our industries. It is clear that north-west England is destined to suffer most economically from loss of access to EEA labour under free movement rules.

I echo the hon. Gentleman’s remarks about public opinion on freedom of movement. A couple of years ago I had the pleasure to participate in a citizens’ assembly organised by the Constitution Unit of University College London. One of the questions that the participants were asked to address was what kind of immigration arrangements they wanted with the European Union after Brexit. This was a deliberative process carried out with a representative sample of over 100 individuals, exactly mirroring the demographic of the referendum electorate in terms of the vote—leave or remain—geography, ethnicity, age, background and so on.

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[Caroline Nokes]

The hon. Gentleman raises an important point. If we have learned one thing from Windrush—and I sincerely hope we have learned many—it is that a declaratory system that does not give people the evidence they need to be able to affirm their right to be in the UK, to work and own property, does not work. That is why we have a scheme that I am confident will give people the evidence they need so that we can avoid a position whereby EU citizens who are here and settled are in the same situation in the future. I am conscious—Members may have heard me say this in Select Committees—that there will be children of EU citizens living in this country today who are well under the age of 16; some will be one or two years old. The hon. Member for Wirral South mentioned an ageing population and longevity, but while we in this room might be lucky to get to our late 80s, there are children who will live to 100 or 110. It is therefore important we have something that is enduring and enables them to evidence their right to be here for a century or more.

[Stuart C. McDonald]

A new argument appeared for the first time yesterday at Home Office questions, saying the problem was caused because Windrush was what Ministers describe as a declaratory system. That was not what caused the problem; the problem was the lack of evidence. In fact, if people did not have rights under statute—as we would like to see here—they could have been removed ages ago and could not have rectified the situation. It is not right to say that a declaratory system caused the problem to the Windrush generation.

[Caroline Nokes]

I disagree. If we look back to the Immigration Act 1971—I have become quite familiar with that Act over the past year in this job—it put the right of the people of the Windrush generation to be here in statute, but it did not provide them with the evidence they needed to demonstrate that. It is important we learn that lesson and make sure we do not repeat the mistake for our EU citizens.

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Irish citizens: entitlement to enter or remain without leave

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

I beg to move amendment 29, in clause 2, page 1, line 11, at end insert—

“(1A) After section 2A insert—

‘2B Family members of Irish citizens

Nothing in the Immigration Rules (within the meaning of this Act) shall lay down any practice that treats or provides for the family members of Irish citizens differently to the treatment or provision made for the family member of British citizens.’”

This amendment seeks to ensure that the family members of Irish citizens are treated in the same way as the family members of British citizens.

[The Chair]

With this it will be convenient to discuss amendment 28, in clause 2, page 2, line 13, at end insert—

“(6) The Secretary of State may not conclude that the deportation of an Irish citizen is conducive to the public good under section 3(5)(a) unless he concludes that a higher threshold is reached whereby deportation is in the public interest because there are exceptional circumstances.

(7) No person of any nationality is liable for deportation under section 3(5)(b) where he belongs to the family of an Irish citizen who is or has been ordered to be deported, unless subsection (6) is satisfied in respect of that Irish citizen.

(8) No Irish citizen is liable for deportation under section 3(6) where recommended for deportation by a court empowered under this Act to do so unless, thereafter, the Secretary concludes that his deportation is conducive to the public good in accordance with subsection (6).

(9) An Irish citizen may not be deported or excluded from the United Kingdom if they are among the ‘people of Northern Ireland’ entitled to identify as Irish citizens by virtue of Article 1(vi) of the British-Irish Agreement of 1998.”

This amendment would provide additional safeguards against deportation for Irish citizens.

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[Stuart C. McDonald]

Clause 2 concerns the special status of Irish citizens in the UK in immigration law. It is probably fair to say that although we often refer to the common travel area, and although we know how it works in practice and have a broad idea of the practical reasons why it exists, the actual law here is pretty obscure, vague and not very well understood. I apologise if I have maligned any Committee members who are in fact experts in this area of immigration law.

In recent years it probably has not been a concern, largely because free movement means that it has not really mattered. That now changes completely if free movement is stopped, and clause 2 is one of the steps that we need to take to ensure that the status of Irish citizens here is protected. Parts of clause 2 are welcome because, if clause 2 were not part of the law, although Irish citizens could still come to the UK without immigration control if they were coming from another part of the common travel area, if free movement ended they would have no such right if they arrived in the UK from outside the common travel area, whether on a plane from New York or a train from Paris. Clause 2 confirms the right of Irish citizens to enter and remain without permission—even if free movement rights end—irrespective of where they entered the UK from, unless they are subject to a deportation order, exclusion order or international travel ban.

The question is: does clause 2 go far enough? The evidence received in writing and heard at hearings suggests that it does not. There are other aspects of the special status that we need to have a look at as well. There is one sense in which clause 2 appears to undermine the special status afforded to Irish citizens, and that is in relation to deportation.

As Professor Ryan pointed out in his evidence, the clause provides that Irish citizens may be deported under the general deportation laws of this country—those that apply to everybody else—under the Immigration Act 1971. Those apply to: a person whose deportation the Secretary of State deems conducive to the public good, including under the controversial mandatory deportation provisions of the UK Borders Act 2007; a person whom a court recommends for deportation at the time of conviction for a criminal offence punishable by imprisonment; and a family member of a person who is or has been ordered to be deported.

The clause would also introduce a specific new power to exclude Irish citizens from the United Kingdom if the Secretary of State considers that to be conducive to the public good. However, in doing so the Bill does not imply any particular special protection regarding the threshold for the deportation or exclusion of Irish citizens. The stated policy of the Government in 2007, according to the then Immigration Minister, was:

“Irish citizens will only be considered for deportation where a court has recommended deportation in sentencing or where the Secretary of State concludes, due to the exceptional circumstances of the case, the public interest requires deportation.”—[Official Report, 19 February 2007; Vol. 457, c. 4WS.]

That is a higher test than would be applied by clause 2, and we heard evidence suggesting that the clause would water down the position of Irish citizens. In that regard, it might be useful to note that, by virtue of their exemption from Irish immigration law, British citizens are completely immune from deportation and exclusion under Irish law. Indeed, other evidence sent to us from a group of academics goes further, and asks why, if Irish citizens are “not foreign” according to the Ireland Act 1949, we need to retain the power to deport them at all. Ireland has not retained the equivalent power.

Professor Ryan raised a further important question about whether, to comply with the Belfast agreement, there should be an exemption from deportation and exclusion for Irish citizens who are from Northern Ireland. Under the Belfast agreement, both Governments recognised the birthright of all people of Northern Ireland to identify themselves as, and be accepted as, Irish, British or both, as they may so choose. As Professor Ryan puts it:

“There is a risk that, as formulated, the deportation and exclusion clauses will fail to respect the right of a person from Northern Ireland who wishes to identify as an Irish citizen.”

He questions whether it is compatible with the Belfast agreement to require a person from Northern Ireland to assert their British identity in order to resist deportation to Ireland. There might even be circumstances in which UK nationality had been renounced.

Those are the issues that amendment 28 is designed to address. It seeks to enshrine in law what is supposedly current Government practice, instead of watering down that standard on deportation. It also seeks to ensure that clause 2 does not in any way undermine the Belfast agreement. I am sure that everyone in this room today would agree that it is important that we get these things right. My final observation in that regard is that, according to Professor Ryan, as I have said, there is no provision in Irish law to deport UK nationals.

Amendment 29 probes the Government, seeking an explanation of what the exact position will be of Irish nationals who seek to have family members join them—if and when the normal family rules in the immigration rules are applied to them. As we will come to later—perhaps today, or on Thursday—I absolutely hate those draconian and restrictive rules, but at least they are there, allowing British citizens and settled persons to be joined by family members. As Professor Ryan points out, the immigration rules will allow for UK citizens returning to the UK to be accompanied by non-UK or Irish family, and for UK citizens and settled persons already here to be joined by non-UK or Irish family. That last bit should apply simply enough to Irish nationals as well, because clause 2, if passed, would appear to mean that Irish persons would be treated as settled persons for the purposes of the rules. I should be grateful for confirmation that that is the case.

The second problem is that it seems, from the clause’s drafting, that Irish persons moving here with such family would not be able to use the rules in the way that a UK citizen could, because they would not yet be settled persons. The Irish person would need to come here first and become settled, and their family would join them later. Another issue is whether the rules in other respects will treat the family members of an Irish citizen in precisely the same way as they treat family members of UK citizens. In particular, if a UK national has a UK national child here, as we all know, the child would not cause the financial threshold to increase if any application was made by an overseas spouse to join them. Would the presence of an Irish citizen child of an Irish citizen result in the financial threshold being increased for any spouse coming to join that family?

Amendment 29 simply seeks to ensure that Irish citizens will be treated in the same way as UK nationals. I will not press it to a vote, however, because as the Committee on the Administration of Justice, a cross-community human rights organisation in Northern Ireland, rightly points out, it may need to be tweaked to ensure that it does not prevent Irish citizens from benefiting from the more favourable treatment that EU families may continue to enjoy for a period through retained EU law, in comparison with UK citizens and settled persons encumbered with the immigration rules. The amendment should probably preclude less favourable treatment rather than different treatment. The CAJ’s submission goes further, supporting the view of the human rights commissions that the common travel area is “written in sand” and warning of “other gaps”, including in relation to social rights.

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[Caroline Nokes]

I thank hon. Members for raising important issues linked to Irish citizens. It is important to recognise that British and Irish citizens have enjoyed a particular status and specific rights in each other’s countries since the 1920s as part of the common travel area arrangements.

Clause 2 will protect the status of Irish citizens. When free movement ends, it will allow them to continue to come to the UK without requiring permission and without any restrictions on how long they can stay. British citizens enjoy reciprocal rights in Ireland. The clause will provide legal certainty and clarity for Irish citizens by inserting new section 3ZA into the Immigration Act 1971 to ensure that they can enter and remain in the UK without requiring permission, regardless of where they have travelled from. That is already the position for those who enter the UK from within the common travel area, but Irish citizens who travel to the UK from outside the CTA currently enter under European economic area regulations. The clause will remove that distinction by giving Irish citizens a clear status.

I turn to the amendments tabled by the hon. Members for Cumbernauld, Kilsyth and Kirkintilloch East, and for Paisley and Renfrewshire North. Amendment 29 would establish in legislation that the immigration rules cannot treat family members of Irish citizens differently from family members of British citizens. The common travel area arrangements have never included rights for the family members of British and Irish citizens. That is an approach that we intend to maintain, but the unique status of Irish citizens means that they are considered settled from the day on which they arrive in the United Kingdom. Irish citizens in the UK can therefore sponsor family members, in the same way as British citizens can. That is the position for those of all nationalities within the UK who are settled.

I also note that Irish citizens, in line with other EU nationals, can be joined in the UK by family members under the terms of the EU settlement scheme, but the amendment would prevent that. To be clear, Irish citizens are not required to apply for status under the EU settlement scheme to benefit from the family member rights, but they may apply if they wish. Under the settlement scheme in a deal scenario, close family members who are not already resident in the UK will be able to join an EU citizen—that includes Irish citizens—under the same conditions as now, where the relationship pre-existed the end of the implementation period. I therefore ask the hon. Member for Cumbernauld, Kilsyth and Kirkintilloch East to consider withdrawing his amendment for the reasons that I have outlined.

Amendment 28 would introduce additional provisions regarding the deportation and exclusion of Irish citizens and their family members. I will use this opportunity to reiterate our approach to deporting Irish citizens in light of the historical community and political ties between the UK and Ireland, along with the existence of the common travel area. Irish citizens are considered for deportation only if a court has recommended deportation following conviction or if the Secretary of State concludes that, because of the exceptional circumstances of a case, the public interest requires deportation. We carefully assess all deportation decisions on a case-by-case basis, taking into account all the facts of the case.

In response to questions asked on Second Reading, I confirmed that the Government are fully committed to maintaining this approach. In that regard, Committee members will have noted that we are making provision to ensure that once we leave the EU, Irish citizens will be exempt from the automatic deportation provisions for criminality in the UK Borders Act 2007. That exemption is contained in the Immigration, Nationality and Asylum (EU Exit) Regulations 2019, which were laid before the House on 11 February. Therefore, proposed new subsections (6) and (8) are not needed.

As I have outlined, the UK’s approach is to deport Irish citizens only in exceptional circumstances or where the court has recommended it, which means that a family member of an Irish citizen would not be considered for deportation unless a deportation order was made in respect of that citizen in line with our approach. I also emphasise that the common travel area rights have always provided solely for British and Irish citizens. They have never specifically extended to the family members of British or Irish citizens, and we intend to maintain that approach.

With proposed new subsection (8) in mind, I must make it absolutely clear that the UK is fully committed to upholding the Belfast agreement and respects the right of the people of Northern Ireland to identify as Irish, British or both, and to hold both British and Irish citizenship as they choose. I recognise the centrality of those citizenship and identity provisions to the Belfast agreement. As I have said, deportation decisions are taken on a case-by-case basis, and we consider the seriousness of the criminality and whether it is in the public interest to require deportation.

Recognising the citizenship provisions in the Belfast agreement, we would consider any case extremely carefully and not seek to deport a person from Northern Ireland who is solely an Irish citizen. However, I recognise the hon. Gentleman’s interest in this matter and will continue to keep it under consideration. I therefore respectfully ask him to consider withdrawing his amendment for the reasons outlined.

[Stuart C. McDonald]

I am grateful to the Minister for her detailed response. As I have accepted, amendment 29 is not perfect. I also accept her general reassurances about the treatment of Irish citizens’ families in the United Kingdom, so I will withdraw the amendment and reflect further on our position.

In relation to what the Minister said about deportations and amendment 28, it seems to me that we are mostly saying the same things, but our statements are reflected better in my amendment than in the clause. We seem to be saying the same thing, but reaching different conclusions about how to enshrine it in law. I am simply asking the Government to put their current practice into statute. I will give further thought to that, but for now I beg to ask leave to withdraw amendment 29.

Amendment, by leave, withdrawn.

Amendment proposed: 28, in clause 2, page 2, line 13, at end insert—

“(6) The Secretary of State may not conclude that the deportation of an Irish citizen is conducive to the public good under section 3(5)(a) unless he concludes that a higher threshold is reached whereby deportation is in the public interest because there are exceptional circumstances.

(7) No person of any nationality is liable for deportation under section 3(5)(b) where he belongs to the family of an Irish citizen who is or has been ordered to be deported, unless subsection (6) is satisfied in respect of that Irish citizen.

(8) No Irish citizen is liable for deportation under section 3(6) where recommended for deportation by a court empowered under this Act to do so unless, thereafter, the Secretary concludes that his deportation is conducive to the public good in accordance with subsection (6).

(9) An Irish citizen may not be deported or excluded from the United Kingdom if they are among the ‘people of Northern Ireland’ entitled to identify as Irish citizens by virtue of Article 1(vi) of the British-Irish Agreement of 1998.”—(Stuart C. McDonald.)

This amendment would provide additional safeguards against deportation for Irish citizens.

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[Caroline Nokes]

As I said in response to the amendments tabled by the hon. Members for Cumbernauld, Kilsyth and Kirkintilloch East and for Paisley and Renfrewshire North, the clause will protect the status of Irish citizens in the UK when free movement ends. Without the clause, as Professor Ryan explained in evidence to the Committee, when freedom of movement ends, Irish citizens will need to seek permission to enter the UK when they arrive from outside the common travel area. I am sure all members of the Committee agree that that would be wholly unacceptable.

In addition to the evidence from Professor Ryan, I also welcome the written evidence from the Committee on the Administration of Justice, which notes that the clause is

“designed to remedy the gap for Irish citizens being able to enter and reside in the UK from outside the CTA”.

Dr de Mars, Mr Murray, Professor O’Donoghue and Dr Warwick highlight that the clause will help to clarify and simplify travel rights under the common travel area.

The Government are clear that, as now, Irish citizens should not be subject to immigration control unless they are subject to a deportation or exclusion order, or to an international travel ban. Those exceptions are set out in the Bill, and they reflect current and long-standing practice. I confirm that our approach is to deport Irish citizens only if there are exceptional circumstances, or if a court has recommended deportation in a criminal case.

[Stuart C. McDonald]

This is the crux of the matter—the Minister is confirming an approach that appears to be different from the one set out in the clause. Why not just include the Government’s approach to this issue in the Bill?

[Caroline Nokes]

The hon. Gentleman will be aware that he just lost a division on that matter, but I am sure we will return to it on Report. He may consider his drafting to be better than that of my Home Office officials, but I must take a contrary view. I confirmed the Government’s approach in response to questions raised on Second Reading, and, as members of the Committee will have noted, once we leave the EU, Irish citizens will be exempt from the automatic deportation provisions for criminality in the UK Borders Act 2007.

The clause amends section 9 of the Immigration Act 1971 so that restrictions placed on those who enter the UK from the CTA by order under that section will not apply to Irish citizens. It also amends schedule 4 to that Act, which deals with the integration of UK law and the immigration law of the islands—Jersey, Guernsey and the Isle of Man. The schedule provides broadly that leave granted or refused in the islands has the same effect as leave granted or refused in the UK. The clause disapplies those provisions in relation to Irish citizens who do not require such leave under the Bill. They also make it lawful for an Irish citizen—unless they are subject to a deportation or exclusion order—to enter the UK from the islands, regardless of their status in them.

The clause aims to support the wider reciprocal rights enjoyed by British and Irish citizens in the other state. Citizens will continue to work, study, access healthcare and social security benefits, and vote in certain elections when they are in the other state. I reiterate that once free movement ends, Irish citizens in the UK will be able to bring family members to the UK on the same basis as British citizens, because they are considered to be settled from day one of their arrival in the UK.

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[Caroline Nokes]

Clause 3 is minor and technical in nature, but it is important for the implementation of the Bill and to ensure that we have a fully functioning statute book. Subsection (1) ensures that the Bill, when enacted, will be covered by any reference to “the Immigration Acts”, which are the Acts of Parliament that govern the UK’s immigration system. They enable, for example, grants of leave to enter and remain, and the deportation of individuals.

References to the Immigration Acts can be found across the statute book. For example, section 55 of the Borders, Citizenship and Immigration Act 2009 requires that functions conferred by virtue of the Immigration Acts are discharged having regard to the need to safeguard and promote the welfare of children in the UK. Clause 3 will ensure that functions conferred by regulations under the Bill must be discharged according to that duty in relation to the best interests of children. Such a provision is standard for an immigration Bill, and clauses that have the same purpose and effect are included in previous Immigration Acts. For example, section 73 of the Immigration Act 2014 and section 92 of the Immigration Act 2016 both provide that those Acts are included in the definition of Immigration Acts.

Subsection (2) clarifies that the Bill is not retained EU law. That means that it is not part of the body of law that will have been saved in UK law by the European Union (Withdrawal) Act 2018. It is important to make it clear that the Bill cannot be treated as retained EU law. For example, it cannot be amended by the deficiencies power under section 8 of the European Union (Withdrawal) Act or any other powers to deal with retained EU law.

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 4, 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 1, 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.

Amendment 11, in clause 4, page 3, line 1, leave out “make provisions applying” and insert

“give leave to enter the United Kingdom”.

Amendment 2, in clause 4, page 3, line 8, 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.

Amendment 3, in clause 4, page 3, line 11, 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.

Amendment 5, in clause 4, page 3, line 17, leave out “other”.

This amendment is consequential on Amendment 3.

Amendment 6, in clause 4, page 3, line 17, leave out from “subsection (1)” to “is” on line 19.

This amendment, along with Amendment 7, will ensure that all regulations made under Clause 4(1) are subject to the affirmative procedure.

Amendment 12, in clause 4, page 3, line 18, leave out

“that amend or repeal any provision of primary legislation (whether alone or with any other provision)”.

This amendment would mean that all regulations made under Clause 4 would be subject to the affirmative procedure.

Amendment 7, in clause 4, page 3, line 21, leave out subsection (8).

This amendment, along with Amendment 6, will ensure that all regulations made under Clause 4(1) are subject to the affirmative procedure.

Amendment 10, in clause 7, page 5, line 44, at end insert—

“(10A) Section 4 and section 7(5) of this Act expire at the end of a period of one year beginning with the day on which this Act is passed.”

This amendment would place a time limit on the Henry VIII powers contained in Clause 4.

[Stuart C. McDonald]

It was a little while after my first election in 2015 that I first heard the term “Henry VIII clause,” but I have become very familiar with it since then. The clauses in the Immigration Act 2016 were outrageous enough, but they are small beer compared with the powers the Government have helped themselves to in the European Union (Withdrawal) Act and in this Bill. There is no need to take my word for it; we have ample evidence. The amendments are largely based on submissions from the Law Society of Scotland and the report of the House of Lords Delegated Powers and Regulatory Reform Committee. I am very grateful to both. It is unusual to have the benefit of the Lords Committee report for a Commons Bill, but it has certainly proved helpful. The Committee said:

“The combination of the subjective test of appropriateness, the words ‘in connection with Part 1’, the subject matter of Part 1 and the large number of persons who will be affected, make this a very significant delegation of power from Parliament to the Executive. The scope of this broad power is expanded even further by subsections (2) to (5).”

If we are serious about our role as legislators and about separating the Executive from the legislature, we must start putting our foot down and reining in these clauses. Otherwise, what on earth are we here for?

We can start that process through amendment 4, by replacing the subjective test of appropriateness. Through amendment 1 we can ditch the phrase “in connection with”. The Committee was absolutely scathing here. 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 (assuming no amendment was made to primary legislation)”.

Amendment 2 is also from the House of Lords Committee’s recommendations. It removes clause 4(v). It noted that subsection (v)

“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”.

It recommended removal

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

That is the challenge for the Minister this morning.

As for the Government’s justifications and the memorandum on delegated powers stating that the powers are needed to protect EEA citizens, it is fair to say that the Committee was not persuaded. It said:

“We believe that transitional arrangements to protect existing legal rights of EEA nationals should appear on the face of the Bill, and not simply left to regulations with no opportunity for parliamentary scrutiny until after they have been made and come into force.”

That is exactly what Opposition MPs have sought to do with other amendments that we will come to later. The consequence of that for the Committee was that there would be no need to use made affirmative procedures set out in clause 4(vi). It recommended removal of that subsection, which is what my amendments 3 and 5 seek to do. The very unusual made affirmative procedure means that the regulations are actually in force when they are tabled in the House of Commons before we have even voted on them. Our position is that the more common made affirmative procedures should be followed, and instruments should be laid in draft and should not come into force until we examine and approve them—hence amendments 6 and 7.

I conclude with some comments by the Law Society of Scotland. It said:

“The abrogation of parliamentary scrutiny is deeply concerning and the cumulative effect of these provisions is to reduce the role of parliamentary scrutiny of legislation relating to immigration, both EU and non-EU”.

For all these reasons, I hope that the Government will listen carefully and rein in their desires for extensive delegated powers under clause 4.

[Afzal Khan]

I wish to speak to amendments 11, 12 and 10. Throughout the Brexit process, the Government have been carrying out a power grab, acquiring powers to amend primary and secondary legislation with little parliamentary scrutiny. The debates on Brexit legislation have shown that there is cross-party support for limiting Henry VIII powers. Back Benchers on both sides of the House recognise that Parliament’s role in making legislation is crucial and must be protected. We accept that there will be aspects of statutory legislation that the Government will need to adjust as a result of ending free movement; we need a functional statute book. However, there must be limits on these powers to ensure that Ministers cannot make significant policy changes, including to primary legislation through statutory instruments.

Currently, scrutiny of secondary legislation is weak. Statutory instruments are unamendable and the Government have a majority on all SI Committees—if the SI even gets a Committee. Those subject to the negative procedure may never even be discussed by parliamentarians, as Adrian Berry said in our evidence session. He said:

“It is true that you have the affirmative resolution procedure, but it is clearly a poor substitute for primary legislation and the scrutiny you get in Select Committees.”—[Official Report, Immigration and Social Security Co-ordination (EU Withdrawal) Public Bill Committee, 14 February 2019; c. 90, Q221.]

He recommended the Henry VIII powers be radically redrawn. We know that the Government plan a major overhaul of our immigration system for EU and non-EU migrants set out in the White Paper. There is a risk that these powers could be used to bring in that entirely new system. Will the Minister confirm whether the Government would use the powers in the Bill to bring in the new system or if there would be a new immigration Bill? If there will be another Bill, when might it come? Would it be in addition to a withdrawal and implementation Bill, if we get a withdrawal agreement?

Immigration is already an area where the Government have extensive delegated powers. Since 1971, almost all major changes to our immigration system have been made through the immigration rules. We want to move to a situation in which there is more scrutiny of immigration changes, not less.

Labour has many issues with the proposed immigration system, but we broadly believe in the principle that certain major changes should have the chance to be fully discussed and debated before they are introduced. We are being asked to take it on trust that Ministers will not abuse the powers delegated to them in this clause. In the wake of Windrush, we should be particularly sceptical of this Government’s promises. The Windrush scandal was the result of a long period of under-the-radar changes to immigration rules, which chipped away at the rights of Windrush migrants and plunged their status in the UK into uncertainty. In the aftermath of Windrush, we should be particularly attentive to the risks of allowing Ministers the power to amend people’s rights after they have been debated and enshrined in primary legislation.

Clause 4 offers the Government a blank cheque to change our immigration laws and reduces the level of parliamentary scrutiny of immigration legislation. The Labour amendment and the SNP amendments, which we support, do four things.

First, they limit the scope of the powers. As currently drafted, changes to our immigration laws will be only in consequence of or in connection with the withdrawal of EU free movement legislation. We support the SNP’s amendment 1, which would limit the scope here. We support amendment 4, which would allow the Secretary of State to make only changes that are necessary rather than those that the Minister considers appropriate. The House of Lords Delegated Powers and Regulatory Reform Committee recommended the amendments because they were disturbed by the use of “in connection with”, as it would confer primary powers on Ministers to make whatever legislation they considered appropriate, provided that there was at least some connection with part one, however tenuous, and to do so by negative procedure regulations.

Amendment 2 would prevent the Secretary of State making changes to fees and charges. Labour has tabled new clause 38, which states that visa fees should be set at cost price. The Delegated Powers and Regulatory Reform Committee raised significant concern about this sub-clause as it confers broad discretion on the Minister to levy fees or charges on any person seeking leave to enter or remain in the UK who would have had free movement rights under EU laws pre-exit. Fees are already so high that they are unaffordable. The Home Office makes enormous profits out of visa fees, and it is concerning that the Government are granting themselves the power to increase them even further.

Secondly, these amendments limit the nature of these powers. Amendment 11 in my name would allow Ministers to grant status to a group of EEA nationals but not allow them to remove any such rights without primary legislation. I am grateful to the Immigration Law Practitioners Association for its help in drafting it. We believe this is a vital safeguard and that right to remain should be set in stone, and not subject to amendment or to being removed by secondary legislation.

Thirdly, these amendments improve the scrutiny that changes to immigration rules will be subject to. Clause 4(6) sets out that some immigration rules may be made by the made affirmative procedure, which means that they will be assigned into law before being laid in Parliament. There is then a period of 40 days in which the House must approve them or they will cease to have effect. The House of Lords Committee recommended that this be removed, which is what amendment 3 does. Amendments 12, 13 and 7 will ensure that immigration rules are subject to the affirmative procedure. Labour has tabled new clause 9, which will subject them to super-affirmative procedure. Our immigration rules have an enormous impact on people’s lives, but they often receive very little scrutiny. The made affirmative procedure means that they will receive no scrutiny before coming into effect and that scrutiny will only be retrospective.

Fourthly and finally, amendment 10 will place a time limit on the Henry VIII powers in clause 4. The Government have said that they will review the White Paper proposal for 12 months. The sunset clause should ensure that they can use the Henry VIII powers in clause 4 to make small amendments to the legislation, but that at the point at which they will make bigger changes, the Henry VIII powers will expire.

We have serious concerns about the extent of the delegated powers in clause 4. Our amendments and the amendments tabled by the SNP would go a long way to limit the powers and would ensure that changes to immigration policy are properly scrutinised.

--- Later in debate ---

Using these powers does not mean avoiding parliamentary scrutiny—far from it. Secondary legislation made under clause 4 will be subject to full parliamentary oversight using well-established procedures. I therefore ask the hon. Members not to press their amendments.

[Stuart C. McDonald]

I am grateful to the Minister for her detailed response; she said she would go into the detail and she certainly did not disappoint. The one defence that does not really fly with me is that similar powers have been used in previous immigration Bills. I objected very strongly to some of the powers that appeared in previous immigration Bills, and certainly to those in the immigration Bill before this one. However, she gave useful examples of how the powers will have to be used. We will have to go away, think carefully about what she said and reflect on whether changes are needed.

The amendment about which I was not fully satisfied by the Minister’s answer, and which I still wish to push to a vote, is amendment 1. In my view, tidying up the statute book and putting in place transitional provisions, as the Minister gave as examples, would surely meet the “in consequence” test, and so the very loose “in connection with” test would not be needed. I also agree with the Lords Committee that transitional arrangements should be in the Bill, first to cover a no-deal scenario, secondly because it would be useful for the UK in Europe in such a no-deal scenario when trying to push other Governments around the EU for reciprocal treatment, and finally because the Bill is a much safer place for it to be than in delegated legislation.

I also have some concerns about the response to amendments 3 and 5 on the different types of affirmative procedure. I still find it startling that we are even contemplating, in a no-deal scenario, an end to free movement within a few weeks’ time. I do not think this country is remotely ready for any such prospect at all; a far more sensible option would be to put in place arrangements for free movement to continue even in a no-deal scenario until we are properly ready to make any changes that are agreed upon. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Amendment proposed: 1, in clause 4, page 2, line 34, leave out “, or in connection with,”—(Stuart C. McDonald.)

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.

Question put, That the amendment be made.