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

Kate Green Excerpts

Committee stage & Committee Debate: 3rd sitting: House of Commons
Thursday 11th June 2020 Public Bill Committees

[Kate Green (Stretford and Urmston) (Lab)]

It is a pleasure to serve under your chairmanship, Sir Edward. I would like to ask the Minister some questions about paragraph 6 of schedule 1, which potentially disapplies any retained EU law relating to the immigration context. It is a similar set of questions to those we were discussing a moment ago in relation to amendment 18, but with a different focus. It arises from evidence that was given to us on Tuesday afternoon by Adrian Berry on behalf of the Immigration Law Practitioners’ Association, which I thank for its help in preparing for this Committee.

I apologise that it was not possible to get an amendment tabled on this paragraph. As my hon. Friend the Member for Halifax pointed out, we have been doing a number of things in relation to this Bill at a rush, and we did not have the transcript of Tuesday afternoon’s sitting until last night. I am very grateful to the Hansard writers for the work they have been doing—I know they have a lot of Bills on—but that has caused part of our problem.

My concern is that the breadth of the wording in paragraph 6 could lead to the repeal of legal protections that go far beyond the realm of free movement, which is the purpose of this Bill. I hope the Minister may be able to put some assurances on the record in relation to my concerns about the Government’s future intentions. As we heard a few moments ago, certain provisions of EU law, as retained EU law, have been brought within UK law by a number of different instruments—some EU law has been brought into domestic law through statutory instruments and so forth. They are saved by section 2 of the European Union (Withdrawal) Act 2018. Direct EU legislation is saved as retained EU law by section 3 of the 2018 Act. It is explicitly defined and does not include treaties or directives; it is things such as EU regulations with direct applicability.

Any other powers, liabilities, obligations, restrictions, remedies and procedures that could be enforced in the UK because of EU law are carried over by section 4 of the 2018 Act. That includes things like treaties and directives that are directly effective. It is, however, important to note that section 4(2)(b) limits the enforceability of directives to the extent that retained EU law is only the rights, powers, liabilities, obligations, restrictions, remedies or procedures arising under an EU directive that are of a kind that have been recognised by the European Court or any court or tribunal in the United Kingdom in a case decided before the end of the transition period.

Paragraph 6 of schedule 1 disapplies those provisions of EU law to the extent that they are either inconsistent with or otherwise incapable of affecting the interpretation, application or operation of any provision made by or under the Immigration Acts, or otherwise capable of affecting the exercise of functions in connection with immigration. The problem is that the carve-out basically all EU immigration law retained by virtue of paragraph 4, because

“capable of affecting the exercise of functions in connection with immigration”

could basically mean just about anything. The question I am asking the Minister is what EU law that paragraph applies to. What exactly are the Government trying to target?

We get some help from paragraphs 68 and 69 of the explanatory notes to the Bill, which suggest the Government may be trying to affect what we have come to call derived rights cases, in the free movement context. For example, cases of so-called Zambrano carers. These are situations where the European Court has recognised that, because of rights within the European treaties available to European nationals, certain rights must be given to those nationals and their family members or carers in order to ensure that the European national can actually enjoy their EU rights. I accept that, if one is trying to get rid of free movement, as the Bill is, these categories would need to be removed from UK law. That is exactly what ending free movement means, but if that is the scope of the Government’s intentions, it should be much clearer in the Bill.

Unfortunately, paragraph 6 goes much wider than that, addressing not only provisions made under the Immigration Acts, as the Minister suggested a few moments ago, but any matter capable of being seen as in connection with immigration. That could include, for example, the anti-trafficking directive, which prohibits removal of a victim of trafficking if they never received sufficient support and assistance under article 11 of the directive. Other directives that could be caught under involving the exercise of functions in connection with immigration include the reception conditions directive, which supports asylum seekers, the EU victims’ rights directive, and potentially others.

One way of protecting all these directives would be simply to say that paragraph 6 of schedule 1 does not affect directives that form part of retained EU law. After all, the Government’s own explanatory notes do not identify any directives that they wish to disapply in the immigration context, even though I accept that the list in paragraph 69 is described as non-exhaustive. Alternatively, the Government could list the directives specifically to be protected, as set out in the explanatory notes, directly within schedule 1 of the Bill.

I have to say that if the Government do not follow either of those paths, vital protections for vulnerable people could be at risk of becoming collateral damage in the ending of free movement. I am absolutely not suggesting that the Government intend to remove those protections, but if they do not intend that, I hope the Minister can give us clear assurances to that effect today and explain why they appear to fall within the scope of the Bill as drafted.

As things stand, the breadth of the language in paragraphs 6 and a lack of sufficient objective parameters to ascertain its intended targets make it impossible to accurately predict which areas of retained EU law could be affected by the Bill. That is exactly the problem we were discussing a moment ago in relation to paragraph 4. It raises fundamental legal concerns. Migrants and their representatives, Home Office caseworkers and judges must be able to ascertain with a reasonable degree of certainty what the law is. Indeed, that is one of the core lessons learned from the Windrush review carried out by Wendy Williams. I do not believe that this provision meets that standard.

[Kevin Foster]

I thank the hon. Lady for her speech and her interest in this section of the Bill. To be clear, paragraph 6 disapplies the directly effective rights deriving from the EU law that will form part of retained EU law at the end of the transition period if they are inconsistent with immigration legislation or affect immigration practices. They are being repealed so that people cannot in the future attempt to rely on such directly effective rights to bypass the system to enter and reside in the UK, other than under the points-based system. We have been clear that provision will be made in the EU settlement scheme for those currently exercising their EU derivative right of residence in the UK, and that has now been provided, as I touched on.

Some people have asked for examples of rights that paragraph 6 would disapply. They include the rights of Turkish nationals to preferential immigration treatment under the European Economic Community-Turkey association agreement. They also include, as the hon. Member for Stretford and Urmston said, derivative rights of residents under EU law such as Zambrano carers, and the Chen, Ibrahim and Teixeira cases, which will cease from the day that paragraph 6 comes into force. Those rights stem directly from the treaty on the functioning of the EU and need to be disapplied because otherwise people could continue to cite and rely on them to bypass the future immigration system.

The Government do not intend to use the provisions to avoid our responsibilities under international law. We are very clear that our system of protection routes will continue to operate separately from the system of migration rules, as they always have. Family migration will not form part of the points-based system; it will be based on the family migration rules. The wording has to be the way it is so that the paragraph is not too wide in scope. This is about citing it in relation to immigration—trying to cite an EU right to work in the UK rather than applying the provision in a situation where we would, for example, be breaching our international obligations. As I said during the evidence session on Tuesday, under statutory instruments and regulations, Ministers cannot act against international law. We could have a long constitutional debate about whether Parliament can still pass primary legislation in relation to international law, but that is probably not relevant to this particular schedule.

In essence, the schedule is about being clear that it will not be possible to use a range of rights to undermine the points-based immigration system that we are putting in place. We want to make it clear that EEA and non-EEA citizens should look to migrate under the points-based system.

Question put, That the schedule be the First schedule to the Bill.

--- Later in debate ---

I very much hope that the Minister has reflected on that request.

[Kate Green]

Amendment 15, tabled in my name and those of my hon. Friends, aims to place the welfare of children at the heart of the way in which Ministers exercise their powers under clause 4. Children’s wellbeing is of central importance, both in UK law and to comply with our international obligations. We are a signatory to the UN convention on the rights of the child and to the global compact on migration, which contains 38 paragraphs on the welfare and treatment of children.

Domestically, the Children Act 1989 sets out the principle of the paramountcy of the welfare of children in matters relating to their care. Section 55 of the Borders, Citizenship and Immigration Act 2009 provides that immigration functions must be discharged with regard to the need to safeguard and promote the welfare of children who are in the United Kingdom. With all that in place, the Committee may feel that we already have a framework that adequately protects children’s interests in immigration matters. However, the powers conferred on Ministers by clause 4 are very broad, and the way in which they are exercised could have a significant impact on children, whose best interests could be overlooked.

My amendment would embed protection against that happening as freedom of movement is ended. It would ensure that policies and rules introduced under the provisions of clause 4 can have no detrimental effect on the children of EEA and Swiss nationals who are resident in the United Kingdom, and would require the Secretary of State to publish and lay before Parliament a statement to explain why he or she is satisfied that that is the case.

The loss of free movement rights in the Bill means that some EEA national children will inevitably fall within the ambit of immigration legislation in the future. Some will be new arrivals to the UK, and others will have been here already but failed to secure the status to which they are entitled, becoming undocumented and subject to the compliant environment as a consequence.

Let me say a word briefly about the children who are at risk of being detrimentally affected, starting with those already in the UK who may none the less have failed to secure status. The number of such children could be substantial. The Refugee and Migrant Children’s Consortium estimates that there were as many as 751,000 non-Irish EEA and Swiss national children in the UK in 2019, but only 415,140 grants of status were made to children under the EU settlement scheme as at the end of March this year. Some of those children will be very vulnerable. My hon. Friends and I tabled new clause 58, which would secure status for looked-after children and young people leaving care, and I hope the Committee will have the opportunity to debate it in the days to come.

The impact of the Bill’s provision on those eligible for status who fail to apply is not limited to looked-after children alone. For example, parents may not understand whether their UK-born children are automatically British, whether they need to apply to register as British, or whether they should apply to the EU settlement scheme. The complexity of the system and the lack of access to advice means that some children may miss out on getting status or fail to obtain the highest status to which they are entitled. Some may be granted only pre-settled status and will need to be reminded to apply for settled status after five years or risk losing their right to remain in the UK.

Another group of children about whom I am concerned is those who have been in custody. Like adults, children applying to the EU settlement scheme are affected by time spent in custody. As well as not counting towards the five-year qualification period for settled status, periods in custody also reset the clock. Any child who spends time in custody will have to recommence their journey to qualify for settled or pre-settled status upon their release. That represents a troubling anomaly in the treatment of children who offend. Our criminal justice system generally takes the view that juvenile criminal behaviour should be treated differently from adult criminal behaviour, but that is not the case in relation to the EU settlement scheme. Is the Minister able to say how many children have been or may be unable to secure settled status as a result of that provision?

The examples I have cited are just that: examples. Any EEA and Swiss national children who do not secure status—those who were born here and those arriving in the future—could be affected by rules that may be introduced under the powers in clause 4. Hon. Members have already identified a number of potential harmful effects on EEA nationals, including children, as a result of the abolition of free movement and the imposition of new or more stringent rules. Some are reflected in the amendments and new clauses we have tabled and include the impact of fees and charges on citizenship applications; data-sharing policies; the application of income thresholds for the admission of family measures, including parents and children; no recourse to public funds conditions, which can affect children; the position of unaccompanied asylum-seeking children; and provisions relating to detention, deportation and removal. As we discussed earlier, schedule 1 may disapply certain provisions of EU law or EU-derived rights, and that, too, could affect children in some cases, such as those who are victims of crime or trafficking.

In all those circumstances, my amendment would provide assurance that the impact of any rules made using the powers in clause 4 would be subject to the requirement that they have no detrimental effect on the children of EEA and Swiss nationals resident in the UK, whatever led them to be here and whatever their status while here.

The second limb of my amendment refers to the requirement to produce a report to Parliament, which would impel the Home Office to develop processes to undertake a systematic assessment of the impact on children of any planned new immigration rules, which does not appear to happen routinely at the moment. Such an approach would also underpin a best interests approach to the application of immigration rules in individual decisions, buttressing the provisions of section 55 of the Borders, Citizenship and Immigration Act. Again, there is little sign that a systematic approach to children’s best interests is embedded in Home Office decision making, and the requirement for immigration rules to protect children’s rights and interests must be supported in the design of decision-making processes and appropriate staff training. I hope the Minister will accept my amendment.

[Stuart C. McDonald]

I apologise, Sir Edward, but in my excitement over the Henry VIII clause and various other delegated powers, I forgot to speak to amendment 22, so I will speak to it briefly. It is slightly different from the amendments I spoke to earlier, which sought to rein in the powers the Home Office is trying to give itself in clause 4. Amendment 22 is more about setting out some guidance as to how those powers should be used, and to set out some principles. I, and I dare say any MP, could come up with 10 or 20 principles by which we would like the Home Office to abide. I have discussed these proposals with Amnesty International and they are good examples of the sort of framework we should provide at the Home Office, rather than giving it a blank cheque to introduce whatever system it sees fit.

The first of the amendment’s five principles is that these rules should be exercised to promote family life. Why have we allowed the Government to deliver tens of thousands of what England’s Children’s Commissioner called “Skype families”, separated by some of the most draconian anti- family migration rules in the world? Why did we watch as the Home Office simply withdrew the concession that generally allowed families with children who had been here seven years to settle permanently? The amendment would lay down a principle that would guide the Home Office to exercise its delegated functions in a way that promotes family life rather than undermining it.

The second principle relates to appeal rights. Everyone in this room believes in the rule of law, a facet of which is that a person should have a ready and accessible means of challenging their removal from the country in which they have made their home. To disagree with that simple proposition would be to ignore some of the key lessons from Windrush.

Thirdly, we need to stop putting so many people through a tortuous process before they have security of residence in this country. If people have been here for years on end, especially during childhood, why are we charging them many thousands of pounds over a 10-year period, with application after application after application? It is a disaster for the families affected and a total waste of Home Office time and resource. Let people move on.

Fourthly, if people are here for family reasons and fall on hard times, do we really want to say that they will just have to suffer and that the safety net we provide for others in a similar situation should not be available to them? If people are here to accompany family, why are we saying to them that they have to put their lives on hold and that they cannot seek work? These features of our immigration system are regressive, counter-productive and, frankly, prehistoric.

Finally the fifth principle is about treating people fairly and not pulling the rug from under their feet once they are here. Of course, rules and policies will change from time to time, but it is highly regrettable that we allow people to come to the UK on a particular visa route and then change the rules so that they apply not just to new people coming in but to those who are already here, making it difficult, if not impossible, for them to remain. A perfect example was the change to the financial threshold for tier 2 visa holders seeking settlement. Imagine if someone has been here for three or four years and met all the salary requirements, only for the Home Office to then say, with a year to go, “This was the salary threshold you had before, but actually we have upped it by £5,000 or £6,000 or £7,000.” That is a retrospective rule change, and it is totally unfair to operate it in that way.

I could have added many more principles to those I would like to see guiding the Home Office. These principles say that if we are going to give the Home Office these powers, we want them to be exercised in the interests of family, the rule of law and stability, protecting against retrospective rule changes and providing financial security. For too long, the Home Office has disregarded those principles. It is time that we as MPs say that it should stop doing that.