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

Stuart C McDonald Excerpts

Committee stage & Committee Debate: 2nd sitting: House of Commons
Tuesday 9th June 2020 Public Bill Committees

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

Q May I continue, Professor Ryan, on deportation? This very same issue arose this time last year, in a previous Bill Committee. Is it right that, at that time, the Immigration Minister made a commitment to the higher threshold, even though it was not in the Bill? Do I recall that correctly?

Professor Bernard Ryan: That is correct. I believe it was in the Committee stage, in the light of the evidence, perhaps, that the Minister made that commitment. Those commitments are obviously welcome, from my perspective.

[Stuart C. McDonald]

Q That prompts the question: why not just put it on the face of the Bill?

Professor Bernard Ryan: It is obviously stronger if it is put in the Bill. If it is not, policy can always be changed. Going back to the wider clause, one strength of what has been done is that it gives clarity to Irish citizens on their position in the United Kingdom. That, in a sense, is the issue with deportation. What are the arrangements going to be? What are the standards going to be? Having things in legislation, rather than in policy, is obviously stronger, from the perspective of Irish citizens.

[Stuart C. McDonald]

Q May I ask a couple of questions about family rights? In your written evidence, you say that Irish citizens in the UK will be able to be joined by non-EEA family members, because they will be treated as settled persons, essentially. Is that right?

Professor Bernard Ryan: My main concern regards Irish citizens who are not yet resident in the United Kingdom. It is the case that Irish citizens are treated as settled once they commence residence. From that point, as things stand, they will clearly be able to sponsor, but what about the Irish citizens planning to come with their non-British or non-Irish family? They will need entry clearance. How will it work for them?

[Stuart C. McDonald]

Is that because the fact that they are not in the UK obviously means that they cannot be treated as settled persons? Okay. I will ask Mr Morgan a question, if he is able to hear.

[The Chair]

Are you receiving us loud and clear?

Jeremy Morgan: Yes. I heard very little of the other evidence, but I heard that question.

[Stuart C. McDonald]

Q Mr Morgan, I understand from your submission that there are issues with the Bill in relation to UK nationals who want to come back, with family members, to the UK from countries in the EEA. Could you explain what those issues are?

Jeremy Morgan: I would like to highlight a particular hardship that UK citizens living in the EEA will face after March 2022. The background is that, in the negotiations over the withdrawal agreement, citizens’ rights were a first priority for both sides, and reciprocity was the watchword. In other words, whatever we got, they got, and vice versa. That was a clear, underlying consideration in the negotiations.

However, the right of citizens to return with their families to their country of origin was deemed outside the scope of the negotiations, and the result is a serious inequality between UK citizens in the EU and EU citizens in the UK, in which, perhaps rather perversely, the discrimination is by the UK against its own citizens. We put forward an amendment in our briefing paper, which has been picked up as amendment 14. This is not the place to analyse the issue in great detail, but I would like to look at the comparison that we draw there between two groups in the case study—a UK citizen living in the EU and an EU citizen living in the UK.

It is a familiar story: a young UK citizen gets on their bike and goes to find work in the EU. They meet someone there, they marry and have a family, and they settle there. At the time when the UK citizen leaves, they have parents in the UK who are in middle to late middle age and are perfectly healthy. The reassurance was there, both for the UK citizen and their parents, that should either parent or both parents become infirm and need to be cared for by their child, there would be no problem about the UK citizen returning with family to look after them.

Years later, say in 2030, one parent might be by herself and need that care. After March 2022, the UK national will be able to return with their EU partner only if their partner can enter under the new points-based system—we have yet to see it, but that is likely to be quite difficult—or if they can meet the minimum income requirement, which is £18,600, as I am sure you all know. It has already been estimated that about 40% of the people living in the UK would be unable to meet that requirement, but matters are complicated for those returning from abroad by the UK rules on what income counts for such purposes. The income of the partner—let us say, in this case, the EU partner—will not count unless they are already in the UK and have been earning that income for six months. So it is a Kafkaesque situation: you cannot get in unless you have the income, but your income counts only if you have already got in.

In practice, the UK national has to earn the minimum income requirement on their own, while at the same time caring for their parent. It will simply be impossible for many people—probably most. In practical terms, the other option is to move the UK parent, who is now elderly and frail, to an unfamiliar country where, for language reasons, they will be unable to speak to the doctors or anyone else. It is well established in the literature that any move, for someone of that age, is difficult. Think how much worse it would be in such conditions; for most people, it is not a serious option.

In practice, it means that UK citizens have to choose between their parents and the family they have made in the EU—a heart-rending choice that nobody should have to make. It is not a choice that a comparable EU citizen of the UK has to face, because they have an absolute right to return to their EU country with a partner they met in the UK, and it is not a requirement that the UK citizen now living in the EU had faced when they moved, because at that time they had a right to do so. It is a case of moving the goalposts long after the event. It is a real worry for many thousands of people in that situation. Be they young or old, most people who have left the UK will have parents back there. It is a worry in the sense that people worry about it; it may not become a practical reality, because who knows what will happen in the future? But it is a real concern, which could be got rid of by passing amendment 14 and removing both the injustice and the discrimination.

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[Mr Goodwill]

Q I have a question for British in Europe. You talked about inequalities. Is it not the case that there is currently an inequality whereby EU or EEA citizens living in the UK have better rights than British citizens in terms of bringing spouses into the country, because the £18,600 income rule does not apply? Indeed, if a British citizen can determine that they are resident in the EU under the so-called Surinder Singh case, they can apply to have that rule addressed. Would you say that by addressing that inequality, we are ensuring that British citizens would have the same rights as everyone else, rather than the current unusual situation in which it is easier for an EU citizen to bring a spouse into the UK?

Jeremy Morgan: I did not understand the beginning of the question. I think the question was: would this equalise the rights between EU citizens living in the UK and UK citizens living in the EU? The answer is yes.

[Stuart C. McDonald]

Q Professor Ryan, while we have the opportunity, I want to ask you further about the third group of issues you addressed in your briefing paper—the provisions of the Good Friday agreement. It seems from your paper that the issue is that, in order to assert certain rights—protection against deportation, for example, or perhaps access to some family rights—people would have to assert their British citizenship, which, reading between the lines, you say is not really consistent with the Belfast agreement. Your solution is to put some sort of equivalence in the Bill for all persons of Northern Ireland. Is that a fair summary?

Professor Bernard Ryan: Yes. Actually, I am borrowing that idea to some extent from Alison Harvey, from whom I believe you are hearing evidence later on. She has written a paper for the two human rights commissions in Ireland on the birthright provisions in the Belfast agreement, and her eventual solution is that people of Northern Ireland should be granted the right of abode—the status given to British citizens—which takes away their need to identify as British in order to get the equivalent outcomes. Both the things I raised—family sponsorship and deportation/exclusion—would be addressed by that route. I come at it from thinking about Irish citizens or people identifying as Irish citizens and how they should be protected, so I would say that an alternative route is to focus on that and somehow put in additional protections for the people of Northern Ireland to address the Irish citizens within them.

[The Chair]

Thank you very much. That concludes our session with this panel of our witnesses, who I thank for coming here today or speaking via audio link.

Examination of Witnesses

Jill Rutter and David Goodhart gave evidence.

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[Holly Lynch]

Q Can I put the same question to Jill Rutter? What would need to change so that the MAC was really equipped to respond to these workforce issues?

Jill Rutter: I fully agree that skills policy and immigration policy need to be much more closely aligned. Whether the MAC is the best instrument to do it, given its current remit, I do not know. There are arguments for extending the MAC and bringing in other expertise. At the moment it is very labour market economist-focused—its remit has largely focused on labour market impacts. There are arguments for expanding the MAC.

I also think it is worth looking at the migration skills surcharge, which is a very blunt instrument. It applies to non-EU migrants; employers who bring in non-EU migrants have to pay a surcharge. The money just disappears into the Treasury, and I do not think it incentivises training at all, so that is something to look at as well.

[Stuart C. McDonald]

Q Can I ask a broad question? It will be a slightly controversial one in these surroundings. To what extent are changes in public attitudes to migration over the last 10 years related to politics and the media? Is it not quite striking that towards the middle of the last decade was when public concern about migration was at its highest, and that is probably when the political debate, if I can call it that, about migration was at its height? The tailing off in public concern also tallies with the fact that, since the referendum, migration has not been on the front page of every newspaper or at the forefront of political debate.

Jill Rutter: A whole load of factors influence public opinion. Our national media and political debates obviously have a hugely important impact, but so does what happens locally and your own personal contact with migrants. If you have friends who are migrants and refugees, you have another reference point to add to what is going on and what is being played out on the internet or on social media.

[Stuart C. McDonald]

Q Does that not illustrate exactly what I am saying about personal experience? Sometimes concern about migration is lowest in places where there are significant levels of migration. If you do not have that personal experience, you must be relying much more on the media, political debate and so on.

Jill Rutter: Absolutely, and that was very evident in the polling that we did: those with no personal contact with migrants and refugees as friends or work colleagues had more negative opinions. I think that that accounts for the difference in attitudes between some of our more diverse cities and our less diverse towns, but political discourse and media stories have an impact as well.

[Stuart C. McDonald]

Q Any thoughts on that, Mr Goodhart?

David Goodhart: I see what you are getting at. I think that there is some truth in the argument that when it is on the front pages of the newspapers every day, it generates a sort of generalised anxiety that is perhaps not justified. But actually if you look at the historic trend from the late ’90s, when immigration started really taking off again, it is remarkable how anxiety about immigration and actual immigration levels really do track each other very closely, although that may have diverged a bit recently.

I also think it is not really fair how it is often said in passing how xenophobic our debate about immigration has been. I do not think that our debate about immigration has been remotely xenophobic.

[Stuart C. McDonald]

Q Really? At any time?

David Goodhart: Yes, really. Almost every time somebody talks about immigration and restricting it, they also say in parentheses how marvellous immigration is.

[Stuart C. McDonald]

Q But we are talking about a decade of “Go home” vans, the Windrush scandal—

David Goodhart: “Go home” vans lasted about five seconds—

[Stuart C. McDonald]

Q Posters during the Brexit referendum, with refugees—

David Goodhart—and that was against illegal immigration. You are not in favour of illegal immigration, are you? You are in favour of illegal immigrants going home.

[Stuart C. McDonald]

Q It was about the free movement of people. The poster that was put up had absolutely no relation to the EU referendum at all, and it was xenophobic.

David Goodhart: No, I don’t think that was xenophobic.

[Stuart C. McDonald]

Q But what was the point of it? What was the point of that poster, if it was not xenophobic? It had nothing to do with the free movement of people. What was the point of putting up that picture?

David Goodhart: It was encouraging illegal immigrants to contact the authorities to get a grant in order to go home.

[Stuart C. McDonald]

Q You are talking about the “Go home” vans now. I was talking about the posters that were put up by certain political parties during the referendum.

David Goodhart: Oh, the Nigel Farage—okay, there is a sort of xenophobic tinge to some of it, but this was a very minority part even of the leave campaign. I think there is an interesting point about opinion in Scotland, which is somewhat different, partly because there has been a somewhat different rhetoric in Scotland.

Actually, I think there is a very good case for having a different visa regime in Scotland once this Bill becomes law. I know that the Government rather set their face against that at the moment, but I think it would remove a source of antagonism between the Scottish Government and the UK Government, and it ought to be perfectly easy to manage, so long as we have a proper internal status checking system—something that is sometimes called the hostile environment. It is not the hostile environment; it is a system of checking people’s status. A separate system for Scotland works only if you have a reliable status checking system—by employers particularly, but also by landlords and others. There is a really good case for it but, as I say, it only works if you have a proper status checking system.

[Stuart C. McDonald]

Q I agree with you as regards employers, but we will come to that debate a little later.

Jill Rutter, may we come back to you? Is there not also an issue about the fact that, compared with other countries—Canada being a particular example—very little effort has ever been made by UK Governments on an integration strategy or on investing in smoothing over some of the challenges that arise because of migration in particular pockets of the country? We had a small fund—I cannot even remember the name—that Gordon Brown introduced, which was scrapped by Theresa May, only for her to introduce a small pocket fund called the controlling migration fund. At best, is that half-hearted compared with what other countries have attempted?

Jill Rutter: Absolutely. Our getting integration right is core to building public confidence in the immigration system. In England, we have an integrated communities Green Paper. Sajid Javid, as a former Ministry of Housing, Communities and Local Government Minister, Home Secretary and Chancellor, is a champion of that but, since his departure, unfortunately, we have not had high-level champions in Government. For a period, we had no integration Minister at all.

Much of integration, too, involves devolved powers—education and so on—and I think more needs to be done by the devolved Administrations in Belfast, Cardiff and Edinburgh. Scotland has a refugee integration strategy, but it is very much about refugees, whereas integration properly as a two-way relationship is an “everybody” issue. Certainly, more action is needed there, in all the Administrations.

As regards the Bill, making immigration and integration policy coherent is something that you should consider—making the acquisition of citizenship easier, allowing asylum seekers who have been here for a long time to integrate and work, and incentivising integration through the new points-based system. For example, more points could be awarded to people who speak English, whatever their job will be in the UK—so using the points-based system to incentivise integration.

[Stuart C. McDonald]

Q Mr Goodhart, should we all be doing more to have a strategy for integration, for citizenship?

David Goodhart: Yes. That is something I have been interested in for a very long time. We should almost have an immigration and integration Department. The problem is, integration is very easy to talk about but, in a liberal society, it is very difficult to tell people where to live or to send their children to school. There are parts of the country where integration is a real problem; there are other parts of the country where it is not at all. You mentioned Canada, but it is a slightly special case; compared with comparable European countries, we do not do too badly.

The thing that I worry about at the moment is schools. Integration in schools is going backwards in most parts of England. In other words, schools are becoming less well integrated. In any given town, you are more likely to have a school that is overwhelmingly one ethnic minority, or ethnic minorities in general, and then another, almost entirely white school. That problem is getting worse, not better. That is something that is in our power to do something about.

We have ways of counting this, of measuring it. We have where people live and where they go to school, and we can measure that by different ethnic group. We can tell which areas are getting better, and which worse. It would be a really helpful thing, not necessarily every year, but every two or three years, to publish some kind of list of what has been happening in different places—some kind of integration/segregation list of local authorities. That would be a huge incentive for all the most segregated local authorities not to be right at the bottom—not to be the most segregated local authority in the country. There are things you can do, and I think we should focus attention on schools, because it is possible to play with boundaries and nudge people into a better school mix.

[Mr Goodwill]

Q Thank you very much, everyone. This session so far has been useful in exploring what factors influence public opinion on immigration, which of course becomes a very political issue in a referendum or a general election; in fact, that was Stuart’s line of questioning. How much does the media affect that, and how much is an altruistic wish to do the best thing for the UK economy?

Jill, I note that you are a co-author of a document published in September 2018, “The National Conversation on Immigration”. I wonder how much that document reflected some of the feeling in the north of England and parts of the country that maybe do not see immigration as allowing somebody to make your coffee in the morning, clean your house or work as your au pair; those that, as we heard this morning, see it more as a limitless supply of Romanians and Bulgarians who can fill your job if you want a pay rise. Do we have a north-south divide on attitudes to immigration, and do you think that was a factor in the fall of red wall seats at the last general election?

Jill Rutter: It is not so much a north-south divide as an inner city-town divide, or a city-town divide. There are some differences in attitudes between the more diverse cities and the less diverse towns, and that can be partly put down to social contact, but there are other factors. In some of those so-called red wall towns, people have relatively little social contact with migrants, and where they do, people have perhaps come to do specific jobs in specific industries. For example, the distribution sector is heavily reliant on a migrant workforce, and poor management of some of those local issues has perhaps impacted on public concerns.

In England, we have the controlling migration fund, which is quite a successful way of dealing with those local impacts: I think its money has been well spent. However, that funding will end, and no successor to that fund has yet been announced. It is vital that that fund is continued, and that its funding is increased if we can manage to do so.

David Goodhart: One of the problems with free movement was that it was so difficult to plan infrastructure: you had huge waves of immigration, and then it fell. We had that experience in 2011-12, when immigration came right down—I seem to remember that the Government almost hit their 100,000 target; net immigration was about 130,000 or 140,000—and then went whizzing up again when the impact of the eurozone crisis hit. That may not be a huge amount when spread across the whole country or lots of big urban centres, but it makes it very difficult to plan your doctors’ surgeries, your school intakes and so on at a micro level. That has been one of the really big problems with free movement, and I think it ought to be more manageable in the future. That has been one of the really big problems with free movement, and I think it ought to be more manageable in the future.

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[Holly Lynch]

Q So the responsible thing for an Opposition to do would be to ask the Government to be explicit in putting all of those implications and those potential changes in the Bill?

Adrian Berry: Yes, because service users—us, the citizens—need to know what the law means. We are entitled to understand that. People who are affected by it need to know what it is. It is not good rule making to do it like this.

[Stuart C. McDonald]

Q Mr Berry, we have just heard some discussion about the possibility of citizens eligible for the settled status scheme not applying for it. For what reasons will people miss the deadline? Can you give us a flavour of why this might be a significant problem?

Adrian Berry: They might be leading disordered lives. They might have things happening in their lives that concentrate their minds elsewhere—family difficulties, work difficulties. They might be affected by coronavirus. They might have mental health impairments. They might be long-term sick. They might be old. They might be demented. There is a whole host of reasons that are part of the ordinary warp and weft of life why somebody might miss a deadline. Not everybody has my focus on the interests of the European Union (Withdrawal) Act and its implementing provisions. Ordinary people do not. There needs to be a benevolent regime that allows them to make late applications.

[Stuart C. McDonald]

Q How would a benevolent regime work? Do you have any ideas about how that could be done or how best it could be done?

Adrian Berry: Yes. You apply late; they grant it. It is that simple. Why would you not do that? Somebody wants to regularise their status and they have withdrawal agreement rights—why muck around?

[Stuart C. McDonald]

Q Okay. You spoke about the Henry VIII powers in relation to social security. You have touched on them a little bit in terms of immigration. Is this just par for the course—a Government helping themselves to sweeping immigration powers—not that that makes it any better, or is this a pretty extreme example?

Adrian Berry: The Government set their own Executive policy for making immigration rules anyway; the Bill does not change that. What the Bill does do is take away your powers to make primary legislation and give them to Ministers by way of regulations. If you want to reverse the way in which powers are distributed in the constitution, that is a matter for you, but personally speaking I think it is a bad idea.

[Stuart C. McDonald]

Q As we heard earlier, immigration rules have been revised thousands of times in the last 10 years. The defence of how we do it appears to be that it allows the Government to respond quickly. Is that in any way an adequate defence? How can we marry up the need for scrutiny with the need to act quickly at times?

Adrian Berry: The Bill does not change the situation that immigration rules are laid before Parliament under section 3 of the Immigration Act 1971. That continues anyway. What the Bill is doing is something discrete and different. It gives Ministers the power to amend primary legislation and retained EU law, which are two separate things. At the moment, the Home Secretary lays immigration rules before Parliament, and they deal with executive policy, not with laws. So, although they are called immigration rules, strictly speaking they are not legislation. The difference here is that this is a paragraph on legislation.

[Stuart C. McDonald]

Q I will just pick up on what you said a little earlier about mobility routes in some of the free trade negotiations that are going on. Can you just expand a little on what you understand is being negotiated in some of those agreements and on what those mobility arrangements might look like?

Adrian Berry: The Home Office position and the UK Government position is to draw on precedent-based treaties that the EU has with Canada, Japan and South Korea, and those treaties have mobility routes that reflect General Agreement on Trade in Services mode 4 commitments for persons who are coming here as short-term business visitors, key personnel, key senior staff and specialists, and also routes in free trade agreements for independent professionals, contractual suppliers and so on. All of those routes would be for 12 to 24 months; none of them would lead to settlement or permanent residence for short-term business visitors.

The UK’s ambition is that it will attract highly skilled people in that way, but only on a temporary basis, and if you are creating an economic migration regime in the Home Office paper, as was trailed in January, and you make no mention of that, it is some omission in the overall scheme, because you need to understand how it works.

The second thing that you really need to clearly understand is that the UK is like a little moon next to the planet Earth of the EU on this. There is a 450-million person territory next door to us that is setting its own economic migration rules and it is competing with us, and if you do not bear in mind what will happen in terms of economic migration in the EU—that you can come in for service provision or for work and have a route to settlement—and you are still creating this inbound regime into the UK, then you are not thinking about the impact of living next door to a much larger jurisdiction, and it is critical in the national interest that you do so.

[Stuart C. McDonald]

Q Ms Sankey, may I turn to you? You have spoken already about how rules around detention will apply to people impacted by the Bill. May I ask you about deportation powers, which became topical a couple of months back, with flights to Jamaica in particular being a source of controversy? How will the Bill impact deportation powers in relation to EU nationals, and what would you like to see changed about it?

Bella Sankey: Thanks very much for the question. The Bill will mean that, for the first time, EU citizens will have the deportation laws that currently apply to non-EU citizens applied to them. Those rules are blunt, they are harsh and they are dehumanising. In 2007, the last Labour Government brought in a power of mandatory deportation for anybody who receives a sentence of 12 months or longer. In 2014, when Theresa May was Home Secretary, the coalition Government introduced additional legislation that meant that if somebody was seeking to resist deportation on the grounds that they had a loving parental relationship with a child in the UK, or a child who was a British citizen, they would only be able to do so if the effect of their deportation would have an unduly harsh impact on that child.

The Home Office defines “unduly harsh” as “excessively cruel”, so at present it is insufficient, if you are a non-EEA national, to show that the impact on your child would be cruel; you need to show excessive cruelty. The effect of that provision means that child cruelty is legislated into our primary legislation. It means that the courts, when they are making these decisions, are forced to allow a deportation to go ahead even though they may find on the evidence that serious psychological harm will be done to a child. The courts are clearly very uncomfortable about that and have said explicitly, in terms, that immigration law can no longer be reconciled with family law principles, because family law principles require the best interests of a child to be taken into account in all public decision making.

That is the situation as it stands. The impact of these laws over the past decade or more has been to cause untold trauma and pain, particularly to Britain’s black community, who are disproportionately impacted because, as is well-known, they are a community that is over-represented in the criminal justice system and subject to social and economic deprivation.

The issue from earlier this year that you mention was, of course, a charter flight to Jamaica. The majority of the people booked on to that flight by the Home Office had drugs convictions—a lot of them when they were teenagers or a long time ago. The law as it stands did not allow any of that to be taken into account, because of the automatic and mandatory power to seek deportation of those individuals.

A number of our clients were victims of modern-day slavery, grooming and trafficking, but again, they found themselves in detention without an opportunity to raise the fact that they had been subjected to that, and of course the large majority of them had been in the UK since they were two or three years old and had been in primary school here and secondary school here. I see the Minister does not seem to be agreeing with this account.

[Kevin Foster]

No.

Bella Sankey: But it is all there on the public record. As I say, the law as it stands has applied in a blunt and discriminatory way against the black community, and this Bill now proposes to extend those harsh provisions to all EU citizens.

I spoke only recently to a woman who was actually removed to Poland on 30 April, leaving behind an 11-year-old child here. She felt that the system had already become unbearable. She was taken into detention following a conviction for theft, and when she was in Yarl’s Wood, without legal aid and without help and assistance, she decided that it would be easier for her and less traumatic for her 11-year-old son if she just went back to Poland. This Bill is going to bring about thousands more Sandras, thousands more family separations, in completely unjust circumstances.

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[Holly Lynch]

Q Thank you. Your organisation asks for clarity about what people’s status and rights will be between the end of the transition period and the closing of the settlement scheme at the end of June. What are your members’ anxieties about that period?

Luke Piper: The Bill brings freedom of movement to an end at the end of this year, but it is not clear what legal status people will have between the end of the transition period, which is at the end of the year, and the end of June—the end of the grace period. There has been no clarity about, or understanding of, what legal rights people will have. We have simply been told that certain checks, such as on the right to work, will not be undertaken, but it is not clear to us or our members how people will be distinguished, both in practice and in law.

[Stuart C. McDonald]

Q Mr Piper, we have heard from the Home Office on the number of applications. We, like you, congratulate the Home Office on achieving significant reach. The problem, of course, is the number of people who will not apply in time. Are you able to give the Committee any indication of the scale of that problem, and who can we expect to be in that number?

Luke Piper: I caught the majority of the question, but let me repeat what I think you are asking: do we have an understanding of the number and type of people who will not apply on time? Is that correct?

[Stuart C. McDonald]

Exactly.

Luke Piper: Much as with the number of people due to apply for the scheme, we do not know. We have no idea of the exact number of EU citizens who need to apply under the EU settlement scheme, so we will not have an understanding of the number of people who miss the deadline. An illustration is the way we look at Bulgarian citizens in the UK. Their population has been estimated at 109,000; however, as of the end of March, over 171,000 Bulgarian nationals had submitted applications. It looked as though Bulgarian residents had already applied, yet more applications keep coming. We do not have a clear indication of the exact number of people who will not apply on time.

As for the type of people, we know that those most at risk and who are marginalised and disenfranchised are very likely to not apply, purely for the reasons that Mr Berry set out—various issues to do with connection to society, disability and so forth. Our concern is that the most marginalised and vulnerable in our society will be at risk, and that has been corroborated by a lot of organisations. You will hear from a representative of The Children’s Society after me, who will set out the particular risks for children and young persons. Conversely, we have significant concerns about older people, particularly those with issues such as mental ill health and dementia.

[Stuart C. McDonald]

Q Coming back to the scale of the problem, looking at international, or even UK, examples of where Governments have tried to encourage citizens to sign up for a scheme, how close to 100% do they tend to get? Do you have any idea?

Luke Piper: That is a very important point. The most successful UK scheme that involved people signing up to certain policies was the digital-only scheme—the switch by everyone to digital TV. That was successful, as 97% of people had signed up by the time analogue TV was switched off. If you place that projection over the estimated population of EU citizens, and say that a remaining 3% will not switch, you are looking at more than 100,000 people who will lose their legal right to live in this country and will face all the problems that we talked about of not having a home, losing their job, and potentially facing detention and removal from the UK.

[Stuart C. McDonald]

Q That is a huge problem, in terms of scale and the nature of the rights that those people would lose. One proposal that has been rejected in previous debates is a declaratory system. Are there other options to try to protect as many of these people as possible?

Luke Piper: The declaratory model is what we have advocated for. If we follow through with a constitutive system, which is what is being proposed, simply improving awareness of the scheme will not be sufficient, as is demonstrated by even the most successful campaigns, which do not achieve 100%. There have to be legal mechanisms in place to ensure that people have the safety that they need to transition to their new rights.

In particular, we suggest that amendments be adopted, including amendments setting out clear definitions of who cannot apply after June 2021, as opposed to who can. We feel that it will assist both Parliament and the Home Office if we can clearly pin down exactly who we do not want applying after the deadline. Furthermore, we could introduce mechanisms through which we could extend the grace period if necessary. We should understand what extending the grace period may look like, and what factors will be taken into consideration. We need to recognise that those who apply after June 2021, who will have no legal basis to be here, will need some form of retrospective mechanism, so that when they do secure their status, their previous periods of unlawful residence are secured.

[Stuart C. McDonald]

Q So your first choice to resolve these issues is a declaratory system. In response to that, the Government tend to argue—if I understand them correctly—that making the system declaratory will mean that people will not apply for proof of status, and that will leave them exposed to the hostile environment and so on. What do you make of that argument?

Luke Piper: I think that unfortunately misrepresents our proposal. The declaratory system is a safety net. We are not advocating for a system where people should not have a deadline by which they must register. Indeed, we believe that there should be incentives and encouragement for people to register. The problem is the consequences for those who do not register in time. Under the current model, if you do not apply, you essentially become illegal in the UK, and you face immense amounts of problems, whereas under a declaratory model, the consequence is that you face inconvenience.

[Stuart C. McDonald]

Q Finally, do you have any concerns about the number of people who appear to be getting pre-settled status, as opposed to settled status, and the implications that that has for them?

Luke Piper: You were a little muffled there, but I think you were pointing to the issues surrounding having pre-settled status, as opposed to settled status. Is that right?

[Stuart C. McDonald]

Yes.

Luke Piper: On the ratio of those acquiring pre-settled status to those with settled status, the trend is not looking great. The estimates that we have been working to suggest that the number of people acquiring settled status is a lot lower than it should be, and indeed the number of people getting pre-settled status is too high. That will, in effect, mean that rather than there being one deadline—June 2021—there will be lots of deadlines for lots of different people, at the various periods when their pre-settled status expires.

[Stuart C. McDonald]

Q Does that have implications for people’s rights—for example, to social security—in the meantime?

Luke Piper: It does, yes. It has quite significant implications for a person’s rights. Those with settled status have complete access to welfare benefits and housing support, which is vital at a time when a lot of people are struggling to retain their employment and their home. Those with pre-settled status do not have an automatic right to access those services and that support; they have to go through further tests and bear further burdens to access that help. This is causing significant problems for people whom we represent; we have seen a significant increase in the number of people experiencing problems in getting help and support because they have pre-settled status as opposed to settled status.

--- Later in debate ---

[Holly Lynch]

No problem. The Minister had presented a conundrum, but we are saying that if those children—bearing in mind that they have had a very difficult start in life—were granted settled status in a declaratory system through the local authorities, and they had both digital confirmation of that and physical proof, it would resolve the problem that the Minister put to you.

Lucy Leon: Yes. We are very much in agreement. That is why we support the 3million recommendation on physical documents as well.

[Stuart C. McDonald]

Q Thank you for calling in, Lucy. You are proposing that the status of these kids is set out in law, but they should apply in order to get proof of that status. Is that right?

Lucy Leon: Yes, that is what we are suggesting.

[Stuart C. McDonald]

Q Perhaps a user-friendly comparison would be British citizenship. Lots of children are born in this country with the status of British citizen. They obviously do not have a document, but whenever it becomes convenient for them, they apply for a passport or another means of proof. Is that a fair parallel?

Lucy Leon: Sorry, I did not get that full question.

[Stuart C. McDonald]

I was just trying to draw a parallel with the status of kids who are born British citizens. Their rights come from a statute, just like you are proposing with these kids getting their rights in a statute, but they still end up—at some point, if it is convenient for them—applying to have proof of that status. But the rights come from a statute.

Lucy Leon: I am sorry. I cannot hear the question; the line is not very clear at all.

[Stuart C. McDonald]

Q Sorry about that. We will leave that for debates later in the week.

The Bill may mean that we end up with EU citizens and children stuck with “no recourse to public funds” conditions on their visas in years to come. How difficult do “no recourse to public funds” provisions and conditions make life for children and their families?

Lucy Leon: Sorry. It seems that the microphones are now moving around. Were you asking how difficult the NRPF conditions are for children and their families?

[Stuart C. McDonald]

Yes.

Lucy Leon: We have worked with children and families with no recourse to public funds for well over 10 years. We have a lot of experience through our services, and recently published a policy report called “A Lifeline for All”, which highlights the impact of this condition on children and families. One of the key issues is that families with no recourse to public funds have no access to mainstream services, or to housing and local welfare assistance schemes. Many of those who are fleeing domestic violence cannot access most safe accommodation either.

The policy has been continued under successive Governments, but that really does not mean it is the right one. It is hugely detrimental to children’s welfare to have a childhood characterised by deep poverty throughout, with the family stuck in a cycle of poverty, vulnerability and abuse, and the child at real risk of exploitation because they have no other lifeline to turn to. We also see the hugely detrimental impact that it has on children’s and young people’s mental health and emotional wellbeing to grow up in such long-term poverty.

In terms of educational opportunities and chances, we also see a higher prevalence of special educational needs among those children in families with NRPF that we have worked with. It is more than just financial support that these families need and are missing out on; it is the access to wider services and support.

[Stuart C. McDonald]

Q Finally, in your briefing you speak about the significant fees and the NHS charge, for example, that families have to contend with. This Bill will mean that in future, European economic area families will face significant visa fees, NHS surcharges and so on. Can you say a little bit about your concerns on that?

Lucy Leon: We have significant concerns about those families. They are families who are already paying into the system. Most of the families we work with are single parents, often in jobs that are now seen as key worker jobs—working in hospitals, in cleaning, in catering or as delivery drivers. They are working families already; it is just that their income does not meet their family’s needs. They are also paying immigration application fees and the immigration health surcharge, so on top of living with no access to any mainstream benefits or extra support, they continually have to try to save up for the next tranche of fees that they will have to pay every two and a half years. They are stuck in an ongoing cycle of debt.

We have seen families lose contact with their social networks because they have had to borrow money, because that is their only means of survival. We are calling for a reduction in immigration fees to at least cost price, and for citizenship fees for children to be waived, because we are doubly penalising children in those families by increasing the levy charged on them, on top of their restricted access to public funds.

[Stuart C. McDonald]

Thank you very much.

[The Chair]

Thank you very much for your evidence. I am sorry that the sound quality was not very good, but thank you for making the time and effort to come.

Lucy Leon: That is fine. I apologise for missing some of the questions. We are more than happy to submit further documentary evidence on the questions that I have been unable to answer.

--- Later in debate ---

[Holly Lynch]

Q We have heard evidence this afternoon from other witnesses regarding their concerns about some of the Henry VIII powers in the Bill. May I ask you to share your thoughts on those, and what they mean not only for parliamentary democracy, but for practitioners of law? Do you have concerns about them?

Alison Harvey: Very much the concerns that Mr Berry expressed about certainty. If it is said that provisions of retained EU law are not compatible with the Immigration Act, please can we have a list? Tell us what they are. You must know, Home Office, otherwise you are not going to be able to operate the system. As he said, we had the European Union (Withdrawal) Act 2018 and the European Union (Withdrawal Agreement) Act 2020, both of which essentially give us powers to save EU law. They also give us powers to knock out retained EU law bit by bit, so what is the point of the Bill at all, in substance terms?

I think the point must be, because immigration is a sensitive area and because it involves people, to give you the opportunity to put in place safeguards. I suppose the Bill goes beyond the European Union (Withdrawal) Act and the European Union (Withdrawal Agreement) Act in that it would allow you to build a new system. There are wider powers of delegated legislation. I think most of the repeals could have been done under those Acts. If you want to test that, you go back to March, when the Immigration, Nationality and Asylum (EU Exit) Regulations 2019 were passed. Look at some of the things that they do: “Let’s give all Gibraltarians a right to apply for British citizenship.” There are big chunky powers in those regulations that are not in the Bill.

The Bill is an opportunity to put some brakes in. What is astonishing is that the Bill looks almost the same as it did last time it appeared; yet last time we did not have a withdrawal agreement. All the wait and see markers that justified not putting something in primary legislation have gone. Similarly, although the Home Office delegated powers memorandum has got longer it has produced, for example, absolutely no more substance on why the powers on fees are needed. The Delegated Powers and Regulatory Reform Committee said that this is so unsubstantial you cannot even say it is a skeleton.

There really is no justification to explain why there possibly need to be those powers. It creates tremendous uncertainty. It certainly creates lots of opportunities for litigation; to go in and argue that, no, something is not incompatible. That does not seem to me helpful at all.

Ian Robinson: Alison has said everything that I could and more.

[Stuart C. McDonald]

Q Alison Harvey, may I first go back to the idea that Professor Ryan was speaking about earlier: the notion of persons of Northern Ireland? The reason that would be useful would be to explain who has certain rights, in terms of family immigration rules or protections against deportation, for example, without having to claim British citizenship or to identify as a British citizen under the Belfast agreement.

Alison Harvey: We have two groups. Proposed new section 3ZA to the Immigration Act is about the Irish in Britain, wherever born—all the Irish; anyone who holds an Irish passport—and it gives them protection wherever they enter the UK, so that if they come from Belfast and go for a weekend in Paris they have not lost all their rights just by spending a weekend in Paris, which technically in law at the moment they have.

The other group are the people of Northern Ireland, who are the people born on the soil of Northern Ireland. Those people, under the Belfast agreement, have the right to identify as British, Irish or both. The question is how you give effect to that right, because at the moment it is argued that you give effect to it by going through a renunciation process, which costs money and makes it very difficult for somebody to identify solely as Irish.

We have provided in the EU settlement scheme for the people of Northern Ireland—those who are born there—to be treated in the same way for family immigration purposes as EEA nationals. That is a fairly short-term right—not a short short-term right, but obviously one that is on the way out because we are leaving the EU and that advantage will disappear over time; it will not apply to new arrivals and it will not apply to the people of Northern Ireland who form subsequent relationships.

So we have said that we will make it not matter whether you are British or Irish, or both, because you will not be at a practical disadvantage. But what people would like to be able to do is identify as Irish without having to give up a British citizenship they never felt they held. That was a point made by Emma DeSouza in her litigation. That litigation ended because it was a case brought by her partner about his EU law rights. So although their arguments were about her ability to identify as Irish, that was not the crux of their case; their case was an EU case, so it died with the changes.

I have put forward in my paper a series of proposals as to how we could fairly simply amend the law to give effect to that aspiration, without in any way damaging the aspiration of those in Northern Ireland who say, “I in no way want to be treated any differently from anyone else anywhere else in the UK”. I think we can square that circle.

[Stuart C. McDonald]

Q You spoke earlier about how new immigration legislation always leads to challenges around transition and the need for transitional protections. Were you speaking then about EU nationals who are already here in the settlement scheme, or were you talking about a wider set of transitional concerns?

Alison Harvey: With any change, you have to decide what you do; it takes five years to get to settlement. What perhaps worries me most when I look at the points-based paper and those proposals is that rather than saying, “This is where we want to end up—how do we get there?”, they are all about what we are going to do next. Therefore, the fear is that we will never get where we want to end up, because we are rushing things, in a way.

As I say, this is a massive change. When Vivienne Stern of Universities UK gave her evidence to the Committee, she said, “Universities will recover from this. The question for us is, what is going to happen in the short to medium term?” I think it is very similar for the immigration system. In the short to medium term, maybe the recessionary effects of covid will mean that there is less need for people, but the short to medium term is the bit that that paper does not even regard as a problem; it just says that this is what we want, and I think that is not realistic. The attention has been focused, for good reason, on the stock of EU nationals—the people who are here—but what will really hurt business is the flow, or the cutting off of that flow.

Mr Robinson has made the point that our system is quicker than that of many countries, but employers are used to it being a lot quicker, and the employers who have the least difficulty are the global multinationals, which have the persons already employed in one part and can move them across. The solely British business, which does not have an overseas branch, has the most disadvantages. It is a bit like the recovery after the pandemic, and the supermarkets have actually done really well during it and the corner shop has closed. It is that sort of thing—this change will advantage the very people who you would have thought, given the Brexit ideology, were the people who were supposed to face a bit more competition from the Brits.

[Stuart C. McDonald]

Q Is that a fair point, Mr Robinson, that those companies that are already tier 2 will have a significant head-start—they may find that processes slow up a bit, but at least they are well established and know these procedures inside out, and it will be the many, many thousands of businesses that have no experience of employing from outside the EU that will face a huge challenge?

Ian Robinson: Yes, that is spot on. If I were to have two conversations,

one with an established tier 2 sponsor and one with a new employer using the system for the first time, the first conversation would be to say, “Okay, the systems that you have will become simpler and quicker, because there will be no advertising, no cap and so on. You will be able to bring more people through sponsorship, because skill level is going down.” It will be more expensive and it will be slower than free movement, but overall, frankly, they can absorb it.

If I then pick up the phone to an employer who has never used the system, they will probably spend between two and four weeks collecting documentation in order to put together an application. The application right now is typically taking four to six weeks, against an eight-week service standard. If we have a rush of employers applying for licences, it seems quite possible that, towards the end of the year or the beginning of next year, that lead-in time will become much longer, during which time they could miss out on an opportunity or a worker.

Then you get to the kicker: if you are sponsoring Stuart, who is single and coming in for three years, for an SME that would cost about £4,000 and for a larger employer it would be about £5,500. If you were coming in with a partner and three children for three years, that would be £17,000 in Government fees, not including the other associated costs.

[Stuart C. McDonald]

Q I daresay that some of the larger companies you may work for will absorb quite a lot of those costs themselves, but if you are running a small business with limited margins, you may not be able to pay the health surcharge that bringing somebody in entails. You will then be left in a place where you are offering a job to somebody, but it comes with a £5,000, £10,000 or £15,000 price tag for that individual, whereas they might have a job offer from Dublin or anywhere else in the EU that involved no such difficulty.

Ian Robinson: Yes, that is fair. If you are coming in as a single person and you are covering your own fees, it is broadly £600 for a three-year visa. You will be paying an extra £624 a year for the health surcharge. You get to indefinite leave to remain, which is about £2,200 or £2,300, and then citizenship is about another £1,200. If you add that up, as I am about to attempt to, it would be not far off £10,000 just to get through to citizenship. If we assume that you are on £26,000 a year and clearing however much of that, it is a hell of a cut. If you also have children, you have to pay another £10,000 each.

[Stuart C. McDonald]

Q All things being equal, the job in Dublin seems significantly more attractive. You will not be surprised if I turn to the issue of Scotland. I should explain to the Committee that a few months back, I and Westminster colleagues instructed Fragomen to produce a report on behalf of the Scottish National party, looking into what other countries do about having a differentiated system for different parts of the country, and looking for options that might work for Scotland and, indeed, other parts of the UK. Would you be able to summarise that work and its conclusions as best you can in a few sentences?

Ian Robinson: We made several suggestions on simplifications for employers and individuals in Scotland: lower salary requirements, faster routes to settlement and so forth. The headline finding was that if the political will were there, it would be quite possible to continue free movement in Scotland after free movement ended for the rest of the UK. I appreciate that that may seem counter-intuitive to some people in the room, but the rationale is that, if you were to continue to operate free movement in Scotland, people would be able to move there and live and work on the structure of their European passport. The obvious challenge is what happens if they subsequently want to move to the UK, as some may, because at that point they would need to have permission to live and work in the UK, just as any other migrant would.

One of the challenges we have had is whether that would turn Scotland into a back door for England, Wales and Northern Ireland. It is hard to make that argument when you consider that the front door is open, given that there will be no visit visa requirement for Europeans coming to the UK. If you were a German who wanted to work in the UK and were content to do so illegally, there would be no incentive to go through Scotland first. You would jump on an easyJet flight into Stansted, maybe not even see an immigration officer and start work if you were so minded.

[Stuart C. McDonald]

Q I suppose the broader point is that we operate a land border and a common travel area with a country that has free movement and a completely independent immigration system.

Ian Robinson: Yes.

[Stuart C. McDonald]

Q And so it would not involve borders at Berwick or whatever else.

Ian Robinson: No. The Government is content that the compliance environment/hostile environment measures that we have in place are sufficient to stop illegal migration and working from tourists. It would be equally capable of stopping that sort of migration from Scotland.

[Stuart C. McDonald]

Q Alison, any thoughts on the notion that you could have different rules for Scotland or Northern Ireland, which will face significant challenges as it shares a land border with an area that is still part of the free movement landscape?

Alison Harvey: It is partly that and partly that we are small, so you can travel a long way quickly. If you give someone a visa for one part of Australia, it works very differently. I remember asking the Australian Minister about that, and he said that it was salary that glued people to the Northern Territory.

In our current points-based system, a tier 2 skilled worker works for a particular employer, so it is not that much of a leap to say, “You must work for the employer in X, Y and Z offices.” Applying it generally may be more complicated, but applying it to workers who work for an employer—whether they are highly skilled or low skilled does not matter—is easier. If you are someone who is on a payroll, it is easier to envisage it working. It becomes more complicated to stop people moving around outside the paid employer—they must be employed by that person.

Ian Robinson: A very quick point: right now, you sponsor a particular person to work for a particular employer in a particular location. If that location changes, the Home Office must be notified. I could not say how much scrutiny they give to that—I do not think it is a great deal—but employers are already reporting on that sort of thing.

[Stuart C. McDonald]

Q I have a final question. Alison, you have obviously been critical of the nature of this Bill. Politicians would say that it gives the Home Office a blank cheque. As you say, last year, the answer appeared to be, “Wait and see. We have to be ready for whatever the outcome of the negotiations is.” This year, it seems to be, “Well, we have to move quickly.” How should we be going about making immigration policy in a way that gets the balance right between allowing some degree of flexibility and speed, and getting a significantly greater degree of scrutiny that does not allow thousands of changes to be made to the immigration rules without an MP batting their eyes?

Alison Harvey: I think Wendy Williams has given you an excellent blueprint in the Windrush lessons learned review. Although those recommendations emerged from Windrush, what she is saying is that you get a Windrush when you have a lack of understanding of your own laws. Complexity makes that understanding so difficult to achieve, as happened with Windrush. She recommends the consolidation of legislation. It is obvious. We need to do that through a consolidation Bill.

We have to have a self-denying ordinance so that no one is trying to change it—not the Government, not the Opposition—and we just get in and consolidate what we have got. Then we go in and change it afterwards. It is difficult enough to consolidate it. It can then go through the consolidated Bill procedure in Parliament, which is the only way you would ever get a consolidated Bill through Parliament without abandoning all other business in the Session to deal with it.

If the Immigration Act 1971 was our “going into the EU” immigration Act, we now need to start again and build up from the top. We need to think much more teleologically about where we want to be and what we want to achieve, rather than start with the how. The problem with the current paper is that it starts with the how and ignores where we are. It cannot cope with pressure such as from the pandemic and its effects on the economy. It is a rigid system full of teeny little routes. We do not need that; we need an idea of what the end result looks like, and then we can look at how to get there. We need a lot more sensitivity to regions, so we need to devolve down a great deal to regions such as Scotland, where immigration is needed. In Somerset, where I come from, the agricultural crisis is going to be huge.

[The Chair]

Thank you very much. I am afraid that it is 5 o’clock, and the rules state that I have now to ask the Whip—it is his moment of glory—to move the adjournment motion.

Ordered, That further consideration be now adjourned. —(Tom Pursglove.)