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

Stuart C McDonald Excerpts

Thursday 28th February 2019 Public Bill Committees

[The Minister for Immigration (Caroline Nokes)]

The clause is minor and technical in nature. It simply clarifies how certain terms within the Bill should be interpreted—for example, “devolved authority” and “domestic law”. In doing so, the clause helps us to ensure the clarity and coherence of the legislation.

Question put and agreed to.

Clause 6 accordingly ordered to stand part of the Bill.

Clause 7

Extent, commencement and short title.

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

I beg to move amendment 34, in clause 7, page 5, line 15, leave out “Scotland”.

[The Chair]

With this it will be convenient to discuss the following:

Amendment 35, in clause 7, page 5, line 15, at end insert—

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

New clause 55—Scottish visas: review—

(1) The Secretary of State must carry out a review of how to implement a system of Scottish visas for people whose right of free movement is ended by section 1 and schedule 1 of this Act, and lay a report of that review before the House of Commons within six months of the passing of this Act.

(2) The review in subsection (1) must consider the following—

(a) whether Scottish Ministers should be able to nominate a specified number of EEA and Swiss nationals for leave to enter or remain each year;

(b) the requirements that could be taken into account when exercising any such power including that the person lives and, where appropriate, works in Scotland and such other conditions as the Secretary of State believes necessary;

(c) the means by which the Secretary of State could retain the power to refuse to grant leave to enter or remain on the grounds that such a grant would—

(i) not be in the public interest, or

(ii) not be in the interests of national security;

(d) how the number of eligible individuals allowed to enter or remain each year under such a scheme could be agreed annually by Scottish Ministers and the Secretary of State;

(e) whether Scottish Ministers should be able to issue Scottish Immigration Rules setting out the criteria by which they will select eligible individuals for nomination, including salary thresholds and financial eligibility.

(3) As part of the review in subsection (1), the Secretary of State must consult the Scottish Government.

This new clause would require the Secretary of State to carry out a review of how a system of Scottish visas could be implemented for EEA and Swiss nationals.

[Stuart C. McDonald]

We now come to the debate that I think everyone in the Committee has been waiting for—a debate about Scotland and immigration policy. Half the room has left, including my hon. Friend the Member for Paisley and Renfrewshire North—I am not taking it personally.

I am not aiming to persuade the whole Committee about the merits of full devolution of immigration powers, because I am not a miracle worker. I want simply to see if we can have a sensible, civilised discussion about the huge challenge on population and migration that Scotland already faces, and how we can best address it—something that will hopefully go beyond a commitment to an immigration system that works for the whole of the United Kingdom. I want such a system as well, but the question is whether that involves applying exactly the same rules to every part of the UK, which has not always been the approach that Governments have taken. We have had a sector shortage occupation list for Scotland. We had a Fresh Talent visa for a period. Even Tech Nation visas gave some preferential treatment to different parts of the United Kingdom.

Scotland’s migration challenge is that we risk seeing too little of it. Scotland needs migration, and probably more of it. To start with some similarities with the UK as a whole, migration helps fuel our economy by creating jobs, bringing expertise, filling roles that cannot otherwise be filled, and generating wealth for all. New arrivals not only make a hugely positive contribution to our public finances but fill many vital public sector roles in the health service and in social care, education and elsewhere. They also enrich our communities and culture, bringing new ideas and ways of doing things.

Scotland’s particular challenge is that, without migration, our population will stagnate and age very rapidly, creating huge difficulties for future generations. Projections from the National Records of Scotland suggest that our population will increase only by a measly 7% over 25 years, with net inward migration accounting for 90% of this growth. The working-age population will grow only slightly—a pitiful 1%—while the proportion of the population above state pension age will increase by 25% in the coming years, as the baby boomer generation reaches retirement. That is before we even take account of the end of free movement.

We need a migration system that sustains or even increases migration in order to support Scotland’s population growth, which is the opposite of the goal that the UK Government are pursuing. We must remember and remind ourselves that Scotland has institutions that can help play a part in operating a different system. We have a Scottish Government and our own Parliament, and there is Skills Development Scotland. There is now an expert advisory group on migration and population, which hon. Members will be aware has published its first report this morning—everyone can rush home at lunchtime to read the results of the group’s analysis of the Government’s White Paper.

Free movement of people has been economically and socially beneficial to Scotland. The benefits include access to labour. On average, an EU citizen working in Scotland contributes over £34,400 in GDP and more than £10,400 in Government revenue. EU migrants take up jobs that are difficult to fill—for example, in social care and food processing—and start businesses of their own. Small and medium-sized enterprises, which dominate in Scotland, are largely locked out of recruiting from beyond the EU via the tier 2 system, so an end to free movement will hit them particularly hard.

The benefits of free movement also include benefits to our demographics and tax base. Office for National Statistics forward projections predict that if there is no net migration from the EU, population growth will be around only 3% over 25 years, and the number of people aged 16 to 64 in Scotland will fall by 9%, compared with a rise of 53% in the number of people over 65.

The amendments that I have tabled offer two broad alternatives. The first is essentially to keep free movement operating in Scotland as it does now, even if it comes to an end in the rest of the United Kingdom. Perhaps there could be some sort of variation on that, if the Home Office prefers. I am doing the Home Office a favour by offering that suggestion, because it will obviously lead to fewer applications to consider. There would be very few enforcement issues, because the Government are proposing that—even after Brexit—EU nationals will be able to come to the United Kingdom without a visa. There is no notion of Scotland operating some sort of back door for people to sneak into England, Wales or elsewhere. In terms of people, it would be no more difficult to enforce than the open border between Northern Ireland and the Republic of Ireland.

I have offered an alternative to that, which is simply to ask the Government to consult stakeholders, the Scottish Government and so forth on specific Scottish visas. We could perhaps make it a specific condition of the visa that migrants have to live and/or work in Scotland. Again, there does not even need to be a loss of control for the Home Office; it can engage with the Scottish Government to agree rules and to agree the number of these visas that would be allowed, and can have ultimate oversight of who is allowed in. It could be limited to non-visa nationals, so there will be very limited enforcement issues. I also want to see it done in a way that avoids complexity and is additional to the systems available in the UK as a whole, rather than being an alternative.

--- Later in debate ---

[Caroline Nokes]

I thank the hon. Members for Cumbernauld, Kilsyth and Kirkintilloch East and for Paisley and Renfrewshire North for tabling these amendments. The hon. Member for Cumbernauld, Kilsyth and Kirkintilloch East said when he started to speak that he looked forward to a sensible and civilised conversation on this matter; across the whole of this Bill Committee, I think we are not doing badly on that front and I certainly hope we can continue in that vein.

These amendments cover topics that I have discussed with the hon. Members and their colleagues on a number of occasions. I fear they might find my response to be fairly predictable, but I make no apology for that. I remain to be convinced that introducing geographical variation into the immigration system is either practical or desirable.

Amendments 34 and 35 seek to change the extent of the Bill so that it does not apply to Scotland. However, the whole of the United Kingdom is leaving the European Union: England, Wales, Scotland and Northern Ireland are leaving the EU. I believe it is our duty as a responsible Government to fully deliver on the result of the EU referendum and to end free movement. It is also important to remind the Committee that this Bill legislates for the end of free movement from the EU. It provides the legislative framework to simplify the UK immigration system by bringing EEA nationals and non-EEA nationals under one system.

Meanwhile, proposed new clause 55 would commit the Secretary of State to reviewing whether or not Scotland should have its own immigration system and its own Scottish visas, but only for EEA nationals. I am not sure how such a proposal, limited to EEA nationals, would be justified on equality grounds. Such a review would not be the first time that the question of whether or not Scotland should have more independence from the UK has been considered, including decisively in a referendum in 2014. With particular reference to immigration, we are not reopening the work of the Smith commission. Immigration needs to be a reserved matter.

I remind the Committee that, in designing the new system, we commissioned the Migration Advisory Committee to consider the best immigration policies for the UK. MAC undertook a comprehensive engagement and evidence-gathering exercise across the whole of the country over a 12-month period and produced an authoritative report that gives the Government a clear direction of travel for the UK’s future skills-based immigration system.

As part of that exercise, MAC considered whether there was an economic need for regional differentiation in the immigration system, and not for the first time concluded that there was no case for it. To quote from its final report:

“Overall, we were not of the view that Scotland's economic situation is sufficiently different from that of the rest of the UK to justify a very different migration policy.”

MAC went on to note that Scotland already has a separate shortage occupation list. The Committee will note that the composition of that list, as well as the UK-wide one—

[Stuart C. McDonald]

I am always perplexed by the facing-two-ways approach that the Government sometimes take on this. On the one hand, they say that they are totally against any sort of differentiation, and then on the other they flag up the shortage occupation list. If there is no economic justification for the shortage occupation list, is it the Conservative position that it should be abolished?

[Caroline Nokes]

I do not accept for one moment that we look both ways. Evidence from MAC suggests that there should not be a separate system, but that our policies should be able to reflect the different shortages in different parts of the United Kingdom. The hon. Gentleman will know that we have asked MAC to consider whether there should also be a different needs list for Northern Ireland, and we are consulting on that for Wales as well. There would be formidable problems with trying to implement a system that could in effect tie a worker to a specific geographical area. Business no longer happens in a single postcode.

[Stuart C. McDonald]

The key visa for workers in this country is the tier 2 visa, which requires someone to work for a particular employer in a particular place. A Scottish visa would not need to be any different. Why would it be incredibly difficult to do that in Scotland when it happens day in, day out all across the United Kingdom?

[Caroline Nokes]

I thank the hon. Gentleman for that contribution. I do not accept that that is what happens at the moment. The tier 2 visa ties somebody to a specific employer. It does not determine that they can work only in a single location. I am conscious that he said that a separate system operating in Scotland would be no different from the current situation that we have with the soft border between Northern Ireland and the Republic of Ireland. I am sure that he, like me, wishes to see that situation continue, with a border that is straightforward and simple. However, he knows, from our current discussions regarding our withdrawal from the European Union, that it is proving to be far from simple to come to a solution to the matter that works for us all.

We have already undertaken engagement in all parts of the UK and will continue to do so; all sectors, nations and regions will be part of our planned 12-month engagement. However, our arguments against a regional immigration policy remain strong, for reasons of both principle and practicality. I therefore ask the hon. Members for Cumbernauld, Kilsyth and Kirkintilloch East and for Paisley and Renfrewshire North to withdraw their amendments.

[Stuart C. McDonald]

I am hugely disappointed by the response from both Front-Bench spokespeople, and their degree of engagement on this will be a disappointment to their party colleagues in the Scottish Parliament. There has been no recognition or engagement with the challenges that Scotland faces. This issue is absolutely pivotal to our economy, tax base and public finances, and their not even recognising that as a problem, never mind offering a single solution, is hugely frustrating.

I recognise that the MAC report was not exactly wonderful for my argument, but it did not say that there should not be a differentiated policy for Scotland; it said that that would be a political decision. I acknowledge that other parts of the United Kingdom also have economic challenges, but my answer to that is to explore options to help them. I pointed to the Tech Nation visa, which has slightly different rules for one or two cities in England, so it is not as if the UK Government do not differentiate for certain parts of England.

The difference is that Scotland already has institutions that could help to operate such a policy, such as a Government and a Parliament, none of which exist in England. I will be happy to table amendments on Report that include Northern Ireland and Wales, if Members wish.

As the Minister said, the Smith commission looked at the issue, but that was long before there were any proposals to end free movement and implement the drastic new system, which has pretty much united Scotland’s businesses, trade unions and third sector organisations in opposition. She must be aware that if she does not think again about the proposals, the already increasing demand for some sort of differentiation will only grow. We have not even started to look at how things work in Canada, Australia or other places, but this does not need to be difficult; it could be simply a small additional means for Scotland to support its population and its economy.

I repeat that I am hugely frustrated by the response that we have been given this morning. I hope that we can get something better on Report, but in the meantime, there is no point in my dividing the Committee. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Afzal Khan]

I beg to move amendment 14, in clause 7, page 5, line 32, at end insert—

“(5A) This Act cannot come into force until the House of Commons has passed a motion in the form set out in subsection (5B).

(5B) The form of the motion for the purposes of subsection (5A) is—

‘That the Immigration and Social Security Co-Ordination (EU Withdrawal Act) come into force’.”

[Afzal Khan]

The Bill is not explicit about when clause 1, on the repeal of free movement, will come into force. Under Clause 7(8), it may

“come into force on such day as the Secretary of State may by regulations made by statutory instrument appoint.”

For reasons outlined in our debates on clause 1, ending free movement prematurely will have the effect of plunging millions of EU citizens in this country into legal limbo and may mean that they are here illegally. If we end free movement too soon, it will be impossible to distinguish those EU citizens who have just arrived in the UK from those who have lived here for decades but not yet registered for settled status. There is therefore a risk that people will be denied their rights to work, rent, use the NHS and so on because they are unable to prove that they have those rights.

If there is a withdrawal agreement, free movement will be repealed at the end of the transition period. Our amendments would ensure that if there is no deal, and therefore no transition period, the Secretary of State will not be able to repeal free movement until EU citizens have been given sufficient time to register for settled status. They would offer safeguards, protect citizens’ rights and secure their status.

[Stuart C. McDonald]

I am pleased to be back on the same side as the hon. Member for Manchester, Gorton; I need not say much more than he did. The amendments would address the problems that will arise in a no-deal situation if the Government introduce their proposals. For example, how will employers and landlords go about distinguishing those who arrive before and after Brexit day? The Minister reassures us that employers need make no checks on prospective employees except whether they are EEA nationals, but the problem is that they will want to know how long those people can work for them; will they be entitled to stay in the UK for three years, or will they end up being entitled to settled status? Likewise, landlords will want to know how long tenancies can last.

Some EU nationals may have the right to be in the UK indefinitely through the settled status scheme, while others may be restricted to three years. This is not the Minister’s fault, but there is no indication how the three-year visa will feed into the future immigration system. There is a huge danger that there will be discrimination, and that the system just will not work. The very simple answer in amendment 36, proposed by the3million, is not to end free movement, either in a deal or no-deal situation, until after the settled status scheme has run its course. Only then can we be absolutely sure that different categories of EEA nationals can be distinguished.

[Caroline Nokes]

I thank the hon. Members for Manchester, Gorton and for Cumbernauld, Kilsyth and Kirkintilloch East for tabling amendments to clause 7, which sets out how and when the provisions of the Bill will commence. Let me briefly outline how the clause operates.

Like clause 6, which deals with interpretation, clause 7 will come into force on the day that the Bill receives Royal Assent. That is common for such provisions.

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[Stuart C. McDonald]

That is acceptable if there is a deal, so I do not understand why it is completely unacceptable if there is no deal.

[Caroline Nokes]

As the hon. Gentleman will be aware, the Government are working hard to secure a deal, but there will need to be a reasonable transition period in the event of deal or no deal. Indeed, in no deal we will have to have an element of control and transition, and there will be no case where we shall be able to implement a new system and switch off the old system overnight. Transition is important, and it is important that we retain the tools that enable us to do that.

We have been clear that we aim for the future skills-based immigration system to be in place from January 2021. This amendment would prevent us from doing that, as it would effectively extend the implementation period for a further six months. That would leave us unable to deliver on our commitments to end free movement and to introduce the new system on time. We received a clear message in the referendum that free movement should end. Delaying it further beyond the agreed implementation period would clearly be ignoring that message.

Even in a no-deal scenario, there will need to be a transition period before the future skills-based immigration system begins. That period should reassure Members that there will be no cliff-edge. The Government announced their proposals for ending free movement in a no-deal scenario in the policy paper published on 28 January 2019. This Bill, not least the measures in part 1, is needed now to enable us to deliver the result of the referendum.

We have also been clear that we will ensure the immigration status of the resident population is protected before the deadline for the EU settlement scheme, through appropriate savings made under clause 4. That will ensure that their rights remain unchanged immediately after exit, avoiding any cliff-edge. That means it is not necessary to delay the repeal of the free movement law in the way proposed to protect the resident population.

By delaying the end of free movement in a no-deal scenario, the amendment creates a group of EU nationals who arrive under free movement, after EU exit but before the end of the implementation period, who will face uncertainty in June 2021, when those free-movement rights end. They are not eligible to apply under the EU settlement scheme and would be in the UK unlawfully, unless they obtain leave under the immigration rules. The Government’s planned transition of a dedicated EU leave to remain route, to bridge the transition from the end of free movement to the introduction of the future system, is both pragmatic and fair, and avoids the cliff-edge I have described. I believe it is preferable to amendment 36, which seeks to prolong free movement unilaterally.

Amendments 14 and 15 seek to prevent the Bill, once enacted, from coming into force until after a motion in a specific form is passed by the House of Commons. While I recognise the importance of facilitating extensive debate on this Bill, I am of the view that legislating for a further motion after enactment is neither an effective nor appropriate use of parliamentary time. There is ample opportunity for Members on both sides of the House to have their views heard and to subject the Bill to scrutiny as it progresses through Parliament. We have already heard valuable and thought-provoking views from both sides of the Committee, and Members will continue to debate and vote on the Bill on Report and Third Reading, before it passes to the other place for further scrutiny.

Furthermore, when the Bill receives Royal Assent, Parliament will clearly have made the decision that it should become law and that free movement should end. The Government have been clear, both publicly and in the House, when they plan to commence the provisions in the Bill. There is no good reason to continue free movement unilaterally in a no-deal scenario, and these amendments, which seek to do so, seek to deny the result of the referendum. That is not acceptable. I therefore ask the hon. Members for Manchester, Gorton and for Cumbernauld, Kilsyth and Kirkintilloch East to withdraw their amendments.