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

Tracey Crouch Excerpts

Thursday 28th February 2019 Public Bill Committees

[Caroline Nokes]

I thank the hon. Members for Manchester, Gorton and for Cumbernauld, Kilsyth and Kirkintilloch East for tabling amendments to clause 7. Amendments 32, 17, 38 and 39 focus on the commencement of the Bill. Amendment 32 is designed to make commencement of section 1 dependent on the Secretary of State’s commissioning an independent review of immigration legislation, with specific reference to the immigration rules, the public sector equality duty, certain provisions relating to the rights to work and rent, and data processing in the immigration arena.

When we voted to leave the European Union, the Government began a comprehensive review of legislation to identify issues that need addressing as a result of EU exit. I have worked with hon. Friends across the Government, including at the Ministry of Housing, Communities and Local Government and at the Department for Work and Pensions, to ensure that we are adequately prepared for the end of free movement.

The review required by amendment 32 is unnecessary, for several reasons. The Government take seriously their obligations under the public sector equality duty and the European convention on human rights and ensure that all elements of the immigration system comply with them. We will vigilantly monitor such requirements as we manage the transition of EEA nationals from free movement rights to having leave to remain under UK immigration law. In a deal scenario, the withdrawal agreement Bill will also deliver that.

In the unlikely event of no deal, the power in clause 4 of the Bill before us will be used to ensure that any issues arising from the ending of free movement can be adequately addressed, principally by making transitional and saving arrangements for existing EEA residents and those who arrive before the new system commences. For example, the process for EEA nationals to prove their right to work, and for employers to check that right, will not change until January 2021. The design of the future system will similarly comply with human rights and equalities duties.

The immigration exemption at paragraph 4 of schedule 2 to the Data Protection Act 2018 was subject to significant scrutiny in both Houses before it came into force in May 2018. It is a necessary and proportionate measure, which we believe is compliant with the general data protection regulation. It can be applied only on a case-by-case basis in limited circumstances in which complying with a certain data protection right would be likely to prejudice the maintenance of effective immigration control. It is also subject to oversight by the Information Commissioner.

I hope that hon. Members can see that we already take into account the relevant safeguards and human rights considerations, and that the amendment is therefore unnecessary.

Amendment 17 would make commencement of part 1 of the Bill dependent on the Secretary of State’s implementing all recommendations in the Law Commission’s review of the immigration rules that relate to persons losing their free movement rights—namely, EEA and Swiss nationals and their family members. As you may recall, Sir David, from the evidence sessions, when this cropped up, the Home Office worked closely with the Law Commission to discuss the remit of the project back in 2017. We all agreed that that was to be the simplification of the immigration rules. We agreed with the Law Commission that it would use the project to seek to identify the underlying causes of complexity in the rules, and that it would conclude with a report setting out recommendations to improve them for the future. My right hon. Friend the Home Secretary and I are pleased with that approach and look forward to reading the final report.

The Law Commission published on 21 January 2019 an initial consultation paper that seeks the views of consultees on preliminary proposals and asks consultees a number of open questions. The consultation is still open; it will not close until 26 April 2019. After the period of consultation, the Law Commission will analyse the results, and it will not deliver its recommendations until its final report later this year.

I hugely appreciate the research that the Law Commission is doing. I agree, and I believe that I have said in this Committee previously, that the immigration rules, totalling more than 1,000 pages, are too long and can be difficult and complex to use. However, I cannot support an amendment that would commit both Parliament and the Home Office to implementing fully proposals that have not even been written yet. The Home Secretary and I want to simplify the immigration rules and we will consider the Law Commission’s recommendations as part of that process. Also, we will not only consider recommendations that relate to those who, under the provisions of the Bill, will lose their right to free movement. We want to simplify the system for all who come into contact with the immigration rules, not just a specific cohort of people.

Furthermore, it is important for the Secretary of State to be able to determine when certain clauses commence, so that we can cater for specific scenarios linked to our departure from the European Union. For example, we may need to bring these provisions into force at the end of an agreed implementation period in a deal scenario, or sooner in the event of no deal. That may require us to bring clauses in part 1 into force before the Law Commission has had a chance to deliver its final report. I ask the hon. Member for Manchester, Gorton not to press either of his amendments, for the reasons outlined.

Turning to amendments 38 and 39, I thank the hon. Member for Cumbernauld, Kilsyth and Kirkintilloch East for giving me the opportunity to discuss these issues. While the Government’s priority is to leave the EU with a deal, we must continue to prepare for all scenarios, including the possibility that we leave without any deal in March 2019. Amendment 38 would hinder our ability to prepare adequately for that. Conducting the review proposed in that amendment would be likely to take some time, and thus would very likely delay the end of free movement. We received a clear message in the referendum of 2016 that free movement should end, and this amendment would leave us unable to deliver promptly on that in a no-deal scenario.

Furthermore, the Government do not think that such a review is necessary. Under section 6 of the Human Rights Act 1998, the Secretary of State is under an obligation to comply with the European convention on human rights in exercising all his functions, including when making immigration policy, when making specific immigration decisions, and when making immigration rules under section 3 of the Immigration Act 1971. The convention rights are already taken into account each and every time we make or amend the immigration rules. I reassure hon. Members that ensuring the welfare of migrants is at the forefront of our thinking for the design of the new immigration system. As such, I hope hon. Members can see that we already take into account the relevant safeguards and human rights considerations, and that amendment 38 is not necessary.

Amendment 39 gives me the opportunity to restate the importance of the immigration exemption within the Data Protection Act 2018. The immigration exemption came into force in May 2018. It was widely debated in both Houses and reassurances were repeatedly given on the scope and potential use of the exemption. The UK generally processes immigration matters under the EU general data protection regulation, commonly known as the GDPR, because the UK generally treats immigration as a civil administrative function, not a policing matter. We have made a deliberate choice to deal with many immigration offences under administrative rather than criminal sanctions.

If the exemption were repealed for EEA nationals who were exercising free movement rights on the date when part 1 of the Bill came into force, the consequence of this amendment, as drafted, would be to place us in a position where in theory EEA nationals, even though by then subject to domestic immigration law, would be treated more favourably than migrants coming from the rest of the world. I find that situation divisive and discriminatory.

Immigration is naturally a sensitive subject area and a topic of huge importance to the public, to the economic wellbeing of the country and to social cohesion. Being able to effectively control immigration is therefore, in the words of the GDPR,

“an important objective of general public interest”.

The new data protection regime gives broader rights to data subjects, which this Government welcome, but it is also important that we make use of the limited exemptions available to us, so that we can continue to maintain effective control of the immigration system in the wider public interest. We have done that within the parameters set down in the GDPR.

[Tracey Crouch (Chatham and Aylesford) (Con)]

My right hon. Friend is making an excellent speech. That is one of the challenges that we parliamentarians face. It is important to recognise that there are sensitivities around the issue of immigration, but in many respects we have reneged on some of our responsibilities by not having a sensible debate about having a country that is open and welcoming to those who wish to come and live and work here, while at the same time having an immigration system that works for everyone, including those who are here and those who want to come here in the future.

[Caroline Nokes]

My hon. Friend makes an important point. As with so much in immigration, it is important that we get the balance right. I have been concerned that there has been much scaremongering in recent months that the immigration exemption would be used by the Home Office to deny individuals rights in a sweeping way, or as an excuse for not providing reasons for the refusal of cases. That is simply not true.

The exemption as set out in the legislation is not a blanket exemption that can be used to deny rights in a sweeping way; it does not target any particular group or individual. There are very clear tests to be met. The immigration exemption is only applied on a case-by-case basis, and only where complying with certain rights would be likely to prejudice the maintenance of effective immigration control. We must be able to satisfy the prejudice test set out in the Data Protection Act before it can be used. The data subject may assert their rights through the Information Commissioner’s office and the courts, if that individual believes that an exemption has been wrongly applied.

The immigration exemption is entirely separate from measures designed to deal with ending the free movement of EEA nationals. It is a necessary and proportionate measure, which we believe is compliant with GDPR—a regulation introduced by the European Union that applies to all member states. I can categorically assure hon. Members that it is not aimed at EEA nationals and, in compliance with our public sector equality duty, it must be applied in a lawful and non-discriminatory manner. I hope that in the light of these points, the hon. Member for Manchester, Gorton will withdraw the amendment.