Oral Answers to Questions

Afzal Khan Excerpts

Monday 1st April 2019 Commons Chamber

[Caroline Nokes]

I thought my response was quite clear. I reiterate to the hon. and learned Lady that the best way to ring-fence citizens’ rights is to vote for the deal.

[Afzal Khan (Manchester, Gorton) (Lab)]

As of 30 March, the EU settlement scheme is fully open. Efforts to promote the EU settled status scheme are too little, too late. No matter how well the Government advertise, there will be people who fail to apply before the deadline. Even if that is just a small percentage, hundreds of thousands of people will be stripped of their rights and subjected to the hostile environment. Will the Government accept proposals for a declaratory scheme—the only way to avoid a repeat of Windrush for EU citizens?

[Caroline Nokes]

I thank the hon. Gentleman for his question. He will of course know that the first three phases of the scheme were in testing mode, and it opened publicly for the first time on Saturday. That was designed to coincide with a widespread communications campaign, on which the Government are spending £3.75 million. He well knows that we debated the issues about a declaratory scheme in the Committee stage of the Immigration and Social Security Co-ordination (EU Withdrawal) Bill. We are very conscious of the fact that we want people to have status that they can evidence. That is why we put the scheme in place. They will have digital status, which will provide them with the ability to share just the information that is required for landlords and employers. I encourage all hon. Members to ensure that EU citizens living in their constituencies take part in the scheme.

Royal Commission on Police Funding

Afzal Khan Excerpts

Tuesday 26th March 2019 Westminster Hall

[Afzal Khan (Manchester, Gorton) (Lab)]

I thank the hon. Gentleman for securing the debate. About 25 years ago, I served as a policeman in Greater Manchester police, which last summer ran a scheme that enabled MPs to go and experience what it is like. I agree with the hon. Gentleman that things have changed; things have changed since I was a police officer, and we can see that even more clearly if we look further back. How can we engage more Members so that we can go ahead with his good idea?

[Stephen Lloyd]

I thank the hon. Gentleman for his intervention, particularly as he used to be a police officer. His intervention is really useful, because he has hit the nail on the head. To make the idea work and to put enough pressure on the Government—they have one or two other things on their mind at the minute—we need to grow the number of Members who back it in Parliament, and grow it in the media. We have a good support base of 51 Members. I was talking to some peers last night, and we are looking to push this in the Lords as well. To me, it is self-evident that policing has transformed, and that policing needs have completely changed in almost 60 years.

As I said, the changes in police forces have been piecemeal. It is difficult for politicians today to understand what the real issues are, because so many different groups give us different ideas and solutions. Only a week or so ago, we had the Prime Minister saying that the cuts in police numbers bore no relation to the increase in knife crime, and the following day the Metropolitan Police Commissioner saying that they did.

I am not making a political point. I believe we need this royal commission because the public yearn to have a group of independent experts—not politicians or the media, but people from policing around the world—taking evidence from a whole range of groups. On a royal commission, such people would be recognisably independent and expert. Using the evidence that was given, they could assess what was fact and what was fiction. I use those words advisedly, because when I and other politicians try to understand policing issues, be they about resourcing or about what we ask the police to do, one problem is that we are told so many different things.

I am not an expert. Unlike the hon. Member for Manchester, Gorton (Afzal Khan), I have not been a policeman.

[Stephen Lloyd]

That is a moot point, but the hon. Gentleman’s intervention reflects precisely my point: we can no longer have piecemeal changes, with one force doing one thing and another force doing another. A lack of consistency is at the heart of the problem of poor morale within police forces and a lack of engagement, support and trust among many of the public.

Let us take the numbers. Our ratio of policemen and women to members of the public is the third lowest in Europe. I do not know whether that is acceptable; perhaps it is, or perhaps we should have more, or less. The point is that it is incredibly difficult for politicians and the Government to understand accurately the needs of modern-day policing and what the resources should be. That is because when it comes to policing and resources, there is so much noise, and so many noises off, from the different interest and lobby groups, and we must draw a line.

No one in the Chamber can fail to recognise that policing and crime have changed so much in 57 years; we know they have. With a royal commission, we want to get the politics out of it. Policing is too important—I will not even get on to police and crime commissioners; that is for another day—for politics. Politics goes straight through policing, from top to bottom, be it about resourcing—too much, or not enough—or what the police should and should not be doing.

I think I am offering the Government an opportunity, because I believe that if a Government, of whichever kind, set up a royal commission properly and robustly, the public will be grateful to them. The findings and conclusions of such a commission will set policing for the next 40 or 50 years. Because of the respect in which a royal commission is held, the public will listen to it and believe what it says in its report. That is crucial, because all the spin, disingenuousness and vested interests around policing mean that the public do not know who to believe. They do not believe us any more, and I do not blame them. What the hell do I know about policing?

As it happens, I have family members in the police and I work closely with the force in Eastbourne, which is brilliant. I was out with Sergeant Scott Franklin-Lester only a few months ago. After four hours, in which he arrested two people, I said, “I hope your mum doesn’t know how dangerous your job is.” I asked that excellent police sergeant for guidance and advice, and his feedback was really helpful and productive. I am not going to drop him in it, but his feedback reminded me how huge the issue is, and that there is a lack of consistency and public trust, as well as low morale in the police. It seems to me that a police royal commission, which I am convinced would get wide cross-party support, is one answer.

[Afzal Khan]

At its heart, the matter is complex, and things have moved on. The Home Affairs Committee has said that the

“current model for police funding is not fit for purpose”.

Does the hon. Gentleman agree that relying on council tax is a particularly unfair way of raising that funding, because areas that have been hardest hit by cuts will raise the least funding? There are clearly complex areas that need to be considered, and a royal commission would be the right way forward.

[Stephen Lloyd]

I thank the hon. Gentleman for his excellent intervention on that specific point. I have a lot of respect for the Select Committee. However, he identifies, as did the hon. Member for Henley (John Howell), that there are many different issues around funding, resources and what we want our police to look like over the next 40 or 50 years. That is why, in my campaign to get the police royal commission off the ground, I am deliberately trying not to pinpoint specific problems. I know them and I see them, and the hon. Member for Manchester, Gorton is absolutely right. But I do not simply want the Government to fix one issue, and then next year—or in six months’ time, after Brexit, if we are not in “Groundhog Day”—fix another little problem. As the hon. Member for Henley has quite rightly pointed out, for example, his own force recognises that rural crime is an issue, so it has fixed it. I am saying, “Stop.” We need to draw a line in the sand.

We need to get the right people on the commission. We need them to take evidence for, say, a year, from all the vested interests and from people with opinions, be they representatives of police forces, academics or possibly even politicians. Following that, we need to come up with a report that, depending on what we want for 21st-century policing and what areas we want to focus on, shows us the resources and the number of police officers required to keep the public safe. That would allow the public—and the politicians, but in this instance the public are key—to give real buy-in to what the commission propose, and also to our police force. I am not going to use clichés: our police force is highly respected as one of the best in the world, and the public have a lot of time for it, but I am concerned that that is fraying. That is wrong for the men and women who are in uniform out there, trying to keep us safe, and it is also wrong for our country.

It is absolutely crucial for the Government to make this decision while we are still slightly ahead of the game. A royal commission would not cost a ton of money—it is not a Chilcot report, or anything—or take an awful lot of time, but it would make a huge difference to the value that the public will put back into our police force. Most importantly, it would improve the police’s delivery and their capacity to fight crime. I urge the Government to recognise that a royal commission is going to happen; I am sure of it. With respect to the Minister, I know why the Government will push back: the line will be, “It will not be for a few years. We need to do something fast.” I do not know about the Minister, but frankly, I am pretty fed up with every Government bringing in new changes to the police here and there, and continuing with that piecemeal process. Let us get this done properly.

A royal commission would mean that other things, such as the excellent rural initiatives, stop. I think, however, that it would be worth the 18 months or so that it would take to put a commission together and compile a report, and the two or three years it would then take to roll out its conclusions. Let us prove to the public—particularly at the minute, with Brexit—that we are not just focused on short-term fix and mend; let us get this one right. If the Minister puts his name to a royal commission, I am sure that he will be much loved and appreciated across the length and breadth of the country, and that such a commission will have an enormously positive impact on our police forces, our public, and, most importantly, fighting crime in all its different forms. Let us not wait another 20 years; the time has come, and I urge the Minister to push the forward button now.

--- Later in debate ---

[Mr Hurd]

That is a valid and important point. I understand the temptation to say, “There are lots of difficult things going on and there is a need to take a long-term view, so let us ask some sensible people to take some time, go away and talk to people, and think about this.” My concern is not just that which my hon. Friend the Member for Henley expressed, but that a royal commission feels like a rather outdated and static process, given the dynamic situation that we are in.

The practical point is that we are approaching an extremely important point in defining the future of policing in this country, which is the next spending review. We cannot be certain, because we live in uncertain times, but the Chancellor has indicated that all being well with Brexit—I know that is a big “if”—that will be a summer for autumn event. For me, that spending review is the next critical point for shaping the immediate future of policing in England and Wales, and there are some things that we just do not need royal commission advice on.

Quite rightly, the hon. Member for Eastbourne talked about resources and officer numbers. If we cut through all the smoke, fire and political heat, there is cross-party recognition of the need to increase the capacity of our police system. We can argue about how fast and how far, but the Government and Labour Front Benchers recognise the need to do that, and we are moving in that direction. Next year, as a country we will be investing £2 billion more in our police system than three years ago. Police forces up and down the country are recruiting more than 3,000 new officers, in addition to staff. It is not only about increasing investment and officer numbers, but about looking hard at how police time is managed, the power of technology to free up time and internal demand and external demand, not least of which are the demands of looking after people on the mental health spectrum. A huge amount of work is going into looking at how we can increase capacity through increased investment and looking again at how the valuable time of frontline officers is used. We do not need a commission to help us in that critical work.

[Afzal Khan]

The commission being proposed has a lot of weight. In a sense, two fundamental issues make the difference: the ability of people to move around and the ability to communicate. That has opened up a world of things on the crime side in terms of how criminals operate across counties and internationally, on the internet and through fraud. It would be helpful to have a commission to look at the totality and to help us have a police force that is fit for the 21st century.

[Mr Hurd]

I understand the point, and I will address it, but my point is that I am not sure that a royal commission is the right solution at the moment for addressing some of the challenges that we know about. We have the capacity among the Government, the political process in this place and police leadership to work through them ourselves. I mentioned the spending review, and that is the major opportunity in the short term. We must not lose sight of getting it right or be distracted by the idea of royal commissions.

We are working closely with the police to look at demand and cost pressures and to ensure that the bid into the spending review is properly informed. With the police we are working through the question of how much further we can go in making the police more efficient and productive on behalf of the taxpayer. We are looking at the balance between crime prevention and the reaction to crime. We are looking at how we can give better support to frontline officers, because it is clear that we can and should do that. We are looking at system issues—issues that have rolled down through the ages, but that continue to be relevant, such as the balance between the centre and the local, the question of how we build and deliver national capabilities and the fundamental question of how we learn from the past for the next stage of upgrading police technology across this fragmented system.

How do we develop more consistent standards across the fragmented system? How do we do a better job of spreading innovation and best practice? Some of that best practice is frankly brilliant, but it exists in pockets. How do we ensure that it is spread across the system? How do we ensure that the fragmented system takes a more systemic approach to tackling some of the perennial problems that it faces? How do we ensure that we allocate resources in the fairest possible way? Those are challenges that we know we have to address, and we are working together with the police to do so. I simply am not persuaded that a royal commission will help those things in the immediate specific context, but I will come back to the point. First, I will give way to the hon. Member for Halifax (Holly Lynch), who is a great supporter of the police.

Emergency Summit on Knife Crime

Afzal Khan Excerpts

Friday 22nd March 2019 Commons Chamber

[Victoria Atkins]

I was delighted to visit Morecambe, which is next door to the hon. Lady’s constituency, and to speak with its wonderful local MP, my hon. Friend the Member for Morecambe and Lunesdale (David Morris), about issues pertaining to crime and the causes of crime in his constituency. I was also delighted to meet the Chief Constable for Lancashire Constabulary, and to hold a conversation about the range of challenges faced by Lancashire—I should perhaps declare an interest, as that is the county in which I grew up and that I adore.

When I visited Blackpool I saw some of the real issues that are affecting our coastal towns, such as transient communities and the impact of the drugs market. We must be clear that those behind this criminality are the gang leaders and criminals who exploit children for profit. That is why, as well as the serious violence strategy, we also have the serious organised crime strategy. We must help young people to build resilience and intervene on them, but we must also get the criminals at the very top of those gangs.

[Afzal Khan (Manchester, Gorton) (Lab)]

Recently in Manchester, 17-year-old Yousef Makki was stabbed to death by another teenager. Last week, the response time of Greater Manchester police rose from six minutes to 12 minutes, and GMP has seen cuts involving more than 2,000 police officers. The solutions to combating knife crime are complex, but the fact remains that the police are struggling and need more resources than those the Government have provided. Will the Government provide the resources they need?

[Victoria Atkins]

We are providing up to £970 million next year in the policing settlement. We provided a further £500 million last year, and we are providing an extra £100 million through the spring statement to give the police the extra resources they need. I ask Opposition Members to do the right thing next week and support the Government’s efforts to introduce knife crime prevention orders. Those have been asked for by the police—the police want them. We have considered them carefully and introduced the legislation as quickly as we can. We just need the House to pass it.

--- Later in debate ---

[Afzal Khan (Manchester, Gorton) (Lab)]

On a point of order, Mr Speaker. On 12 March, I asked the Home Office a written question seeking the time it takes for emergency travel document applications to be secured for a person in immigration detention. I was told that the information could be obtained only at disproportionate cost. However, during a sitting of the Immigration and Social Security Co-ordination (EU Withdrawal) Public Bill Committee, the Minister for Immigration told us that the average time it takes to get travel documents for people in immigration detention is 30 days. As I am sure you are aware, Mr Speaker, my amendment proposing no more than 28 days’ detention has signatories from across the House, including Tory and Democratic Unionist party MPs, so there is great interest in the Government’s arguments on this issue. Can you advise me on how to ensure that the background data that the Minister relied on to make that claim in Committee is available to MPs seeking to evaluate her claim?

[Mr Speaker]

Strictly speaking, Government make a judgment about whether they can provide an answer. It is not a matter of order on which the Chair can adjudicate. That said, if I understood the hon. Gentleman’s point of order and he has previously been given an indication in a Committee sitting of average waiting times, it seems not unreasonable that he should then put down a question seeking to ascertain the facts on that matter. Therefore, my advice to him is really twofold. First, at the risk of irritating the House, I would repeat my general advice in matters of this kind: persist, man. Persist. Persist. Keep asking the question. The hon. Gentleman might wish to put it in a different way—or possibly even to a different Department, although I doubt it—and to try to persuade the Minister, perhaps privately, of the reasonableness of the inquiry. Beyond that, it is open to the hon. Gentleman to seek to use freedom of information legislation to secure the response that hitherto has been denied to him. I hope that he will profit from my counsels and that it will not be necessary for him to raise the matter again, but if it is, I am sure that he will.

Draft Immigration, Nationality and Asylum (EU Exit) Regulations 2019

Afzal Khan Excerpts

Monday 18th March 2019 General Committees

[Afzal Khan (Manchester, Gorton) (Lab)]

It is a pleasure to serve under your chairmanship, Mr Hanson.

Labour opposes the draft regulations on four grounds. First, they will make changes to 21 separate pieces of primary legislation—something that should rightly be done through primary legislation. The Immigration and Social Security Co-ordination (EU Withdrawal) Bill, which has just come out of Committee, was surely the perfect vehicle for any necessary changes to primary legislation before exit day. Putting those changes into a Bill would have allowed more time for hon. Members to scrutinise exactly what they will mean for each of the Acts affected, and to table amendments if necessary. We accept that many of the changes are technical, but they could easily have been spelled out in the Bill and nodded through in Committee.

Our second reason for opposing the draft regulations is that on the Bill Committee we spent a lot of time talking about how chaotic and disorganised the current immigration rules are. They are almost impossible for immigration lawyers, judges and Home Office officials to understand, let alone the average person applying for a visa without the help of legal aid. The point of supplementary scrutiny is not just to criticise the Government, but to consider and improve what they are doing. More chances for scrutiny would avoid contradictory rules and bad laws.

Thirdly, the draft instrument puts the cart before the horse. We do not yet know whether the immigration Bill will become law, as it faces significant hurdles before Report in the Commons and has not yet been through the Lords. This statutory instrument makes changes for a post-Brexit immigration landscape that is not yet assured.

Finally, the statutory instrument revokes the Dublin III regulation, which determines which EU member state is responsible for returning an asylum claim.

[Stephen Timms (East Ham) (Lab)]

I am pleased that my hon. Friend raises the question of the Dublin agreement. Is it his understanding, as it is mine, that a significant number of families who can currently be reunited thanks to that regulation could no longer be if there were no deal and we were to exit on the basis of the SI before the Committee?

--- Later in debate ---

[Afzal Khan]

I wholeheartedly agree with my right hon. Friend. We accept that leaving the EU will mean leaving Dublin III, but we would have liked continued co-operation on family reunion even in a no-deal scenario.

Dublin III has been a crucial mechanism for reuniting refugee families. In 2018, over 1,000 people were reunited with family members in the UK under that regulation, including over 150 children. If the UK leaves the EU with a deal, Dublin III will remain in place until the end of the transition period, during which time the Government are committed to negotiating reciprocal arrangements on separated children. That should be expanded to include all the family reunion cases allowed under Dublin III.

If we leave without a deal, we will immediately cease to be part of Dublin III, and many refugees will be unable to be reunited with their families from 29 March. UK immigration rules contain provisions for the reunion of refugee families, but evidential requirements are higher than under the Dublin III regulation, in which the definition of “family member” is broader. We support calls for the UK’s immigration rules to be more generous in family reunion cases, so that children can sponsor family members and the definition of “family” is broader.

We welcome the Government’s inclusion of a saving provision in the draft regulations to allow for take-charge requests made before exit day to continue to be considered. In the light of delays between an application for asylum and the submission of a take-charge request, however, what consideration was given to making the asylum application the cut-off for the process, rather than the take-charge request?

Draft Immigration (European Economic Area Nationals) (EU Exit) Order 2019

Afzal Khan Excerpts

Monday 11th March 2019 General Committees

[Afzal Khan (Manchester, Gorton) (Lab)]

It is a pleasure to serve under your chairmanship, Mr Austin.

This statutory instrument covers broadly two groups of people: EEA citizens who are already living in the UK, who will need to apply for settled status, and EEA nationals who wish to come to the UK after free movement has ended, who require leave to enter. Although it contains some measures that we welcome—for example, the extension of the settled status scheme to other EEA countries and Switzerland—we will vote against it because the Government should be doing those things in the Immigration and Social Security Co-ordination (EU Withdrawal) Bill, which is currently before Parliament.

On the same day that Members received an invitation to this Committee, the Secretary of State published a statement of changes to the immigration rules, totalling 296 pages. It covers topics ranging from the EU settlement scheme to the new investor visas. Compare that with the immigration Bill that we have just finished discussing in Committee, which was just 16 pages long. That absurdity is a perfect illustration of the need for greater scrutiny of immigration law. The Government give themselves broader powers in Bills and use immigration rule changes and unamendable statutory instruments to build our immigration system.

I turn now to the SI. I will first discuss the settled status provision. The explanatory memorandum states:

“Free movement will be brought to an end, subject to Parliamentary approval of the Immigration and Social Security Co-operation (EU Withdrawal) Bill currently before Parliament.”

Directly afterwards, it says:

“However, appropriate provision needs to be made to ensure that that EEA nationals who are resident here before the UK’s exit will have their rights protected and will continue to be able to reside in the UK.”

As the Minister knows, Labour has called for the rights of EEA nationals already resident in the UK to be on the face of the immigration Bill. Otherwise, they will go from relying on supranational EU laws on free movement to relying on a scheme to be set out entirely in secondary legislation. Their rights will be significantly more fragile and open to amendment, and even revocation, by the Government.

The House recently passed the Costa amendment, which called on the Government to seek an agreement with the EU to ring-fence part two of the withdrawal agreement. Can the Minister tell us whether that is consistent with the explanatory memorandum, which says:

“In a ‘no deal’ scenario, the Government intends to protect these rights by making regulations under clause 4 of the Immigration and Social Security Co-operation (EU Withdrawal) Bill, once enacted.”

Why is it that if there is a deal, EU citizens’ rights will have the protection of an international treaty, but if there is not a deal, they will be protected only by an easily amendable piece of secondary legislation? EU citizens need certainty about their rights to live, work and study here after free movement has ended. If we know that, deal or no deal, EU citizens will have the same rights to settled status, why does the Minister not put those rights on the face of the immigration Bill?

[Michael Fabricant]

The hon. Gentleman is absolutely right to go on about the rights of European citizens here, but he has not mentioned the rights of British citizens in Europe. I am wondering what his view is. Does he not think it would be proper for Europe to give the same rights to British citizens?

[Afzal Khan]

I absolutely agree with the hon. Gentleman. It is right that there should be a reciprocal understanding that we should be given whatever rights they are given. We want EU citizens, and British citizens in the EU, to be able to carry on with their life.

It is good that this SI makes clear that EEA citizens can spend five years outside the UK, and that time spent with the British Council or the armed services will not count. However, why are Swiss nationals allowed only four years and why, again, is that provision not included in the primary legislation? The SI allows EEA nationals and their family members to apply for settled status from outside the UK. Can the Minister confirm that they will be able to do so under exactly the same conditions as if they were applying from the UK?

I move on to the topic of EEA citizens who arrive in the UK after free movement has ended. The Government have proposed that, in a no-deal scenario, EEA nationals will be granted three months’ leave. Again, the Opposition’s overriding objection to that proposed scheme is that it was not included in the immigration Bill. These measures are due to come into effect when the Immigration (European Economic Area) Regulations 2016 are revoked, which is exactly what the immigration Bill does. The timelines are identical, so the Government have no grounds for saying that this SI is more urgent than the Bill. If that scheme were part of the Bill, Committee members would have been able to table amendments to it, whereas a statutory instrument is only subject to a straight yes or no vote, which the Government are bound to win. Does the Minister have any reasons for setting that proposed scheme out in secondary legislation, apart from a desire to avoid scrutiny?

I have many questions and concerns about the proposed three-month leave scheme. Some are taken from the “Free Movement” blog, to which I am grateful for its thorough analysis of the scheme. First, the explanatory memorandum says that the proposal is to provide leave

“in a ‘no deal’ scenario”.

Is it the Government’s intention that this scheme, or a similar one, will operate if the UK leaves the EU with a deal at the end of the transition period?

Secondly, I am concerned about the potential for discrimination against EU citizens. What proof will people have of their three-month limited leave? Will that proof be in a physical form, as we have called for with settled status? How will employers, landlords and banks be able to tell the difference between someone who has been in the UK for years and not yet applied for settled status, and someone who has come in under the three-month limited leave scheme? If we are not careful, this scheme will lead to confusion and to discrimination against all EEA nationals, no matter when they came to the UK.

The Home Office has said:

“we will not ask employers or other third parties, such as landlords, to start distinguishing between EU citizens who were resident before exit and post-exit arrivals”

until 2021. However, the requirement to check the immigration status of employees and tenants is in primary legislation; the Government cannot exempt such third parties from that requirement through a policy document. The explanatory memorandum sets out that people granted leave will be able to work in, study in or visit the UK, but it is very unlikely that employers would hire someone when they do not know if that person will be able to stay in the country for more than three months.

Thirdly, I am concerned about how workable limited leave will be. There will be many EU citizens who stay longer than three months and who will be unaware of the need to apply for leave. How will the Government raise awareness so that we do not have hundreds of thousands of people unknowingly in the country illegally? What is to stop someone coming to the UK for three months, leaving and then re-entering to start another three-month period, rather than applying for leave?

Fourthly, I am concerned about the long-term future of EEA citizens who come to the country after March. The Home Office has said outright that there might be some who do not qualify under the new arrangements and who will need to leave the UK. What type of leave will people be required to apply for after three months, and how will that work? There have been media reports that applying for a visa to extend the three-month limited leave will cost £100. Can the Minister confirm that that is the case?

As I said before, it is good that the SI makes it clear that EEA citizens can spend five years out of the UK and that time spent with the British Council or armed forces will not count. Why is it four years for Swiss nationals? The SI would allow for EEA nationals and their family members to apply for settled status from outside the UK. Can the Minister confirm that this will be under the exact same conditions as if they were applying within the UK?

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[Afzal Khan]

Does the hon. Gentleman accept that when citizens came from the Commonwealth, it was also light touch? There were no restrictions and they were allowed to come, but we ended up with Windrush.

[Sir Robert Syms]

We set off as an imperial power letting people in with a limited amount of documentation. The same thing happened with British kids who were sent out to Australia because they were in homes in this country. They have the same problem. Immigration policy has generally strengthened over the years and that is why that issue occurred. These days we all have credit cards and phones. We have an audit trail when we move in. It is not beyond the wit of man or woman to find out when someone arrived and when they left. The point is to keep the wheels of commerce, travel, education and everything else turning until the Home Office gets a better system in due course. If you are going to eat an elephant, do you do it one bite at a time?

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

Afzal Khan Excerpts

Committee Debate: 10th sitting: House of Commons
Tuesday 5th March 2019 Public Bill Committees

[Alison McGovern]

I accept what the Minister says, and I beg to ask leave to withdraw the motion.

Clause, by leave, withdrawn.

New Clause 15

Settled status

‘(1) Any person who has their right of free movement removed by the provisions contained in this Act has the right of settled status in the United Kingdom if that person —

(a) is an EEA or Swiss national;

(b) is a family member of an EEA or Swiss national or person with derived rights;

(c) is resident in the United Kingdom on or prior to 31 December 2020.

(2) Any person who is entitled to settle status under subsection 1 has the same protection against expulsion as defined in Article 28 of Directive 2004/38/EC of the European Parliament and Council.

(3) The Secretary of State must ensure that any person entitled to settle status under subsection 1 receives proof of that status via a system of registration.

(4) The Secretary of State must issue a paper certificate confirming settled status to any person registered for settled status under this section.

(5) No fee may be charged for applications to register for settled status under this section.

(6) Any person who has acquired settled status under the provisions of subsection 1 is entitled to—

(a) remain in the United Kingdom indefinitely;

(b) apply for British citizenship;

(c) work in the United Kingdom;

(d) use the National Health Service;

(e) enrol in all educational courses in the United Kingdom;

(f) access all benefits and pensions, if they meet the eligibility requirements.

(7) A person’s right to use the National Health Service (d), enrol in educational courses (e) and access all benefits and pensions (f) under subsection (6), is the same as those for a British national.

(8) Any person who is entitled to settled status under subsection (1) loses their settled status only

(a) if they are absent from the United Kingdom for a period exceeding five continuous years after 31 December 2021 or

(b) if the criteria for expulsion as set out in Article 28 of Directive 2004/38/EC of the European Parliament and Council applies to them.

(9) In this section, “family member” has the meaning given in Directive 2004/38/EC of the European Parliament and Council.

(10) This section applies if the United Kingdom leaves the European Union —

(a) following a ratified and implemented withdrawal agreement; or

(b) without a ratified and implemented withdrawal agreement.’—(Afzal Khan.)

Brought up, and read the First time.

[Afzal Khan (Manchester, Gorton) (Lab)]

I beg to move, That the clause be read a Second time.

[The Chair]

With this it will be convenient to discuss the following:

New clause 16—Rights of family members—

‘(1) Family members of any person (“P”) granted settled status under the provisions of clause [Settled status] are entitled to settled status in the United Kingdom after 31 December 2020 if —

(a) the family member’s relationship with “P” began before 31 December 2020; and

(b) the family member is still in a relationship with “P” when the family member applies for settled status.

(2) Any family member of any person (“P”) granted settled status under the provisions of clause [Settled status] are eligible for a family visa to come and live in the United Kingdom if that relationship began after 31 December 2020

(3) Any children born in the United Kingdom to a person granted settled status under the provisions of clause [Settled status] is a British citizen, whether the child was born before or after that person being granted settled status.

(4) Any family member who is entitled to settled status under subsection (1) loses their eligibility for settled status if they are absent from the United Kingdom for a period exceeding five continuous years after the date on which their settled status was granted.

(5) In this section, “family member” has the meaning given in Directive 2004/38/EC of the European Parliament and Council.

(6) This section applies if the United Kingdom leaves the European Union —

(a) following a ratified and implemented withdrawal agreement; or

(b) without a ratified and implemented withdrawal agreement.’

This new clause is consequential on NC15.

New clause 17—Settled status: further provisions—

‘(1) The Secretary of State must ensure that no EEA or Swiss national, or family member of an EEA or Swiss national or a person with derived rights, is denied settled status in the United Kingdom on account of their non-exercise of European Union treaty rights or a removal decision made as a result of their non-exercise of European Union treaty rights.

(2) In this section, “family member” has the meaning given in Directive 2004/38/EC of the European Parliament and Council.’

New clause 18—Right to family life—

‘(1) Article 8 of Schedule 1 of the Human Rights Act 1998 (Right to respect for private and family life) applies to all EEA and Swiss nationals who are granted settled status in the United Kingdom.

(2) Article 8 of Schedule 1 of the Human Rights Act 1998 1998 (Right to respect for private and family life) applies to all EEA and Swiss nationals who are granted a work visa under the provisions of clause [Work visas for EEA and Swiss nationals].’

This amendment is consequential on NC21

New clause 33—No time limit for applicants for settled or pre-settled status—

‘(1) No time limit shall be placed on the right of EEA and Swiss nationals to apply for settled or pre-settled status in the United Kingdom.

(2) No EEA or Swiss national can be removed from the United Kingdom under the provisions of the Immigration Act 1971 after exit day if that person meets the requirements for settled or pre-settled status under appendix EU to the Immigration Rules.

(3) In this section, “exit day” has the meaning given in section 20(1) of the European Union (Withdrawal) Act 2018.’

This new clause would ensure that there is no time limit on applicants to apply for settled or pre-settled status and prevent EEA nationals who had not yet been granted this status from being removed.

New clause 35—Documented proof of settled or pre-settled status—

‘Any person granted settled or pre-settled status under appendix EU of the Immigration Rules must be provided with a physical document confirming and evidencing that status within 28 days of that status being granted.’

This new clause would ensure that all EEA and Swiss nationals granted settled or pre-settled status must be provided with physical proof confirming their status.

New clause 47—Settled status—

‘(1) A person to whom this section applies has settled status in the UK.

(2) This section applies to EEA and Swiss nationals, family members of EEA and Swiss nationals, and family members who have retained the right of residence by virtue of a relationship with an EEA or Swiss national and meet any one of the following conditions—

(a) they have a documented right of permanent residence;

(b) they can evidence indefinite leave to enter or remain;

(c) they have completed a continuous qualifying period of five years in any (or any combination) of those categories.

(3) This section also applies to—

(a) EEA and Swiss nationals who have ceased activity, and

(b) family members of EEA and Swiss nationals who have ceased activity and who have indefinite leave to remain under subsection (3)(a), providing the relationship existed at the point the EEA and Swiss national became a person who has ceased activity.

(4) This section also applies to family members of an EEA or Swiss national who has died where—

(a) the EEA or Swiss national was a resident in the UK as a worker or self-employed person at the time of their death;

(b) the EEA or Swiss national was resident in the UK for a continuous qualifying period of at least two years before dying, or the death was the result of an accident at work or an occupational disease; and

(c) the family member was resident in the UK with the relevant EEA or Swiss national immediately before their death.

(5) This section also applies to (a) a child under the age of 21 years of an EEA or Swiss national or (b) a child under 21 of the spouse or civil partner of an EEA or Swiss national where the spouse or civil partner was the durable partner of the EEA or Swiss national before the specified date, the partnership remained durable at the specified date, and the EEA or Swiss national has settled status under this section.

(6) The Secretary of State must, by way of regulations, make provision for EEA or Swiss nationals to secure documentary evidence of their settled status, without charge.

(7) A person with settled status has indefinite leave to enter or remain in the United Kingdom; has the same rights and entitlements as a UK citizen and cannot lose settled status through absences from the UK of less than five years.’

This new clause would ensure that certain EEA and Swiss nationals, and family members, have settled status by operation of law, and make clear what settled status entails.

New clause 48—Settled status: relationships with British citizens—

‘(1) A person to whom this section applies has settled status in the UK.

(2) This section applies to a family member of a qualifying British citizen and a family member who has retained the right of residence by virtue of a relationship with a qualifying British citizen; and the person has a documented right of permanent residence.

(3) This section also applies to a family member of a qualifying British citizen and to a family member who has retained the right of residence by virtue of a relationship with a qualifying British citizen and there is valid evidence of their indefinite leave to enter or remain.

(4) This section also applies to a person who meets the following criteria—

(a) they are a family member of a qualifying British citizen or a family member who has retained the right of residence by virtue of a relationship with a qualifying British citizen;

(b) the applicant has completed a continuous qualifying period of five years either (or any combination) of those categories; and

(c) the applicant was, for any period of residence as a family member of a qualifying British citizen relied upon under subsection4(b), in the UK lawfully by virtue of regulation 9(1) to (6) of the EEA Regulations (regardless of whether in the UK the qualifying British citizen was a qualified person under regulation 6).

(5) This section also applies to a person who meets the following criteria—

(a) the person is a child under the age of 21 years of the spouse or civil partner of the qualifying British citizen (and the marriage or civil partnership was formed before the specified date); and

(b) the applicant is in the UK lawfully by virtue of regulation 9(1) to (6) of the EEA Regulations (regardless of whether in the UK the qualifying British citizen is a qualified person under regulation 6); and

(c) the spouse or civil partner has settled status.

(6) The Secretary of State must, by way of regulations, make provision for persons who qualify for settled status by virtue of this section to secure documentary evidence of their settled status, without charge.

(7) A person with settled status has indefinite leave to enter or remain in the United Kingdom; has the same rights and entitlements as a UK citizen (subject to subsection (9)); and cannot lose settled status through absences from the UK of less than five years.’

This new clause would ensure that certain family members of UK citizens have settled status by operation of law, and make clear what settled status entails.

New clause 49—Limited leave to remain—

‘(1) A person to whom this section applies, has leave to enter and remain until 30 March 2024, or until such time as the person has settled status.

(2) This section applies when—

(a) a person is an EEA or Swiss national, a family member of an EEA or Swiss national or a family member who has retained the right of residence by virtue of a relationship with an EEA or Swiss national; and

(b) the applicant is not eligible for settled status because they have completed a continuous qualifying period of less than five years.

(3) This section applies when—

(a) a person is a family member of a qualifying British citizen and is in the UK lawfully by virtue of regulation 9(1) to (6) of the EEA Regulations (regardless of whether in the UK the qualifying British citizen is a qualified person under regulation 6) or a family member who has retained the right of residence by virtue of a relationship with a qualifying British citizen; and

(b) the applicant is not eligible for settled status solely because they have completed a continuous qualifying period of less than five years.

(4) This section applies when—

(a) the person is a child under the age of 21 years of the spouse or civil partner of the qualifying British citizen (and the marriage or civil partnership was formed before the specified date);

(b) is in the UK lawfully by virtue of regulation 9(1) to (6) of the EEA Regulations (regardless of whether in the UK the qualifying British citizen is a qualified person under regulation 6); and

(c) the spouse or civil partner has been or is being granted limited leave to remain under this section.

(5) The Secretary of State must, by way of regulations, make provision for persons who qualify for leave to remain by virtue of this section to secure documentary evidence of their leave, without charge.

(6) A person with limited leave to enter or remain in the United Kingdom has the same rights and entitlements as a UK citizen.’

[Afzal Khan]

My hon. Friend the Member for Sheffield Central will speak to new clause 15.

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[Caroline Nokes]

From the demonstrations that I have had of the digital right-to-work check, and the work that I have done with the Landlords Consultative Panel surrounding the digital right to rent checks, we have seen a very simple and straightforward procedure where the individual can send a time-limited link to a prospective employer that does not require them to do a great deal of research to find digital status; it is there at the click of a mouse button. However, I am listening to the views put to me by the Committee, and will reflect on them over the next few weeks.

As I said, the new digital capability forms part of moving the UK’s immigration system to digital by default, and is a simpler, safer and more convenient system. The proposed new clause would be a step backwards in simplifying the current system. I therefore request that the hon. Member for Manchester, Gorton withdraw the new clause.

[Afzal Khan]

We wish to press new clause 15 to a vote.

Question put, That the clause be read a Second time.

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I very much hope that the Immigration Minister will be able to give firmer assurances to people who have suffered such injustice at the hands of that American company. That might have happened some years ago, but the issue remains very live for those individuals. Members of the Committee might be aware that the issue was covered again on “News at Ten” this week. It is an extremely painful story that does not reflect well on the education provided in this country. I am sure that the Minister will agree that at a time when it is important for us to be an attractive destination to international students, this is an injustice that the Government will want to do everything they can to put right, and as quickly as possible. I look forward to her response.

[Afzal Khan]

I strongly agree with the new clause. I have been involved in campaigning on the TOEIC test issue. It is a burning injustice that is long overdue for resolution by the Home Office. Thousands of innocent students have spent years trying to clear their names. In Committee, we have discussed the terrible consequences of the “hostile environment”, and those all rained down on the students. I hoped that the issue would be resolved long before now, given that the scandal first broke five years ago. Given that the legal limbo continues, we support the new clause as a vehicle to compel Ministers to resolve it.

[Caroline Nokes]

I thank the hon. Member for Stretford and Urmston for tabling the new clause on behalf of the right hon. Member for East Ham. The new clause relates to the use of certificates to evidence knowledge of English. It raises an important issue, and I would like to explain the Government’s response to widespread abuse of English language testing facilities, which came to light in 2014.

The scale of the fraud—there is no doubt it was a fraud—is illustrated by the fact that so far more than 20 people have received criminal convictions for their role in facilitating the deception, and sentences totalling more than 60 years have been handed down. Further criminal trials are ongoing. There was also a strong link to wider abuse of the student visa route. The majority of individuals linked to the fraud were sponsored by private colleges rather than universities, many of whom the Home Office had significant concerns about well before “Panorama” uncovered the specific fraud. Indeed, 400 colleges who had sponsored students linked to the fraud had already had their licences revoked prior to 2014.

The Educational Testing Service had its licence to provide tests within the UK suspended in early February 2014 and was removed from the immigration rules on 1 July 2014. Approximately 20% of the tests taken in the UK were provided via ETS prior to its suspension.

During 2014, ETS systematically analysed all the TOEIC tests administered in the UK dating back to 2011 and classified them as either questionable or invalid. ETS categorised results as questionable where it had significant concerns about the test centres and sessions where they had been obtained.

We have always recognised that it was possible that a small number of students who took legitimate tests could have received a questionable result. That is why we ensured that those people were given the chance to resit a test or attend an interview before any action was taken against them. ETS categorised results as invalid only where the same voice was matched to two or more tests taken in different names, indicating that deception was likely to have been used.

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[Stuart C. McDonald]

Let me say at the outset that I am stepping somewhat outside my comfort zone in discussing automated data checks, so I am grateful for the assistance provided by the Immigration Law Practitioners Association and the Open Rights Group.

The settled status scheme relies heavily on automatic data checks. Input of a national insurance number triggers the automatic transfer of certain data from HMRC and the DWP to the Home Office. That data is subjected to algorithmic machine analysis according to a Home Office business logic, details of which have not been made public. Result outputs of pass, partial pass and fail are issued to a Home Office caseworker. Once the output is received, the raw data apparently disappears. Applicants who pass the data check are deemed to have fulfilled the residence requirement for the purposes of settled status. Applicants who do not pass are invited by caseworkers to upload documents for manual checking. Applicants who cannot evidence five years’ continuous residence generally receive pre-settled status.

Campaign organisations, including ILPA and the Open Rights Group, rightly believe that the Home Office has three specific legal duties—to give reasons for data check outcomes, to ensure that its caseworkers have meaningful oversight of the checks, and to provide public information about the scheme. The new clauses identify actions that the Home Office should take to comply with those three duties. They seek more information about the data checks and they would increase transparency.

Let me briefly take each of the three duties in turn. The first is the duty to give reasons for the outcome of a data check. The Home Office is under a common law duty to give reasons for its decisions to grant or refuse settled status. The data checks are a mandatory step in the scheme and they are integral to decision making. The duty to give reasons therefore includes a duty to explain why the data checks gave the result they did. Reasons should detail what data was analysed and how the business logic was applied. That information would enable applicants to appreciate whether decisions were open to challenge for irrationality or were made on the basis of inaccurate information.

If the Home Office accepts that it has a duty to give reasons, at least in some cases, how will it approach the need to retain records to supply such reasons? What data about applicants is retained by the Home Office as a result of the data checks? For what reason, and for how long, is that data retained? Which persons does the Home Office envisage will have a genuine business need to see that data?

The second duty is the duty to inform the public about the logic of the data checks. The EU General Data Protection Regulation of 2018 requires the Home Office to process data in a transparent manner. It would be consistent with such duties of transparency and openness if the Home Office provided meaningful public information about its business logic that enabled applicants to understand how it will apply in their case. Will the Home Office provide full details of, or sufficient information about, its business logic to allow its application to all types of individuals to be understood and to allow for independent review? What steps is the Home Office taking to limit and rectify business logic operational errors?

The third duty is the duty to exercise supervisory control over data checks. Making decisions by relying on output from automated data checks without scrutinising these is likely to constitute unlawful delegation of powers. To prevent this, a manual check for system errors should be conducted when applicants challenge refusal of settled status.

Proper oversight, safeguards and transparency are essential when dealing with complex decisions and people in vulnerable situations. It is important for EU nationals to know whether they are eligible for settled status, and if they are not eligible, the future date on which they are likely to become eligible. At the outcome of the data check, the Home Office should inform non-passing applicants which years the checks accepted covered, and which not. This would also improve system efficiency by reducing unnecessary challenges.

Some final questions: on the basis that residence is not contingent on income or contribution, why does it appear that different weighting is applied to data from the Department for Work and Pensions and from HMRC? Why is HMRC requested to provide data first, and not DWP? Will the Home Office add functionality in the scheme to enable applicants to easily request and obtain the information that HMRC and/or DWP have supplied about them? What steps is the Home Office taking to address the particular challenges faced by vulnerable groups such as children in care, persons in abusive or coercive relationships, victims of labour exploitation and trafficking and people who cannot provide documentary evidence, notably children, pensioners, non-working dependants, homeless persons, casual workers and victims of domestic abuse?

[Afzal Khan]

We support these amendments. I make two brief comments. First, the EU settlement scheme will entail an enormous amount of data sharing between the Home Office and other Departments. It is right that the terms of this data sharing should be transparent. Secondly, the possibility of EU citizens’ data being passed on by the Home Office has understandably caused concern among those citizens. We do not want to create any barriers to EU citizens applying for settled status. Getting a high take-up rate is already going to be extremely difficult. Providing for explicit consent for data to be shared or reused would be a sensible limit on Government powers.

[Caroline Nokes]

I am grateful to the hon. Members for their new clauses 24 to 29 and 31. Given the similar effects of some of these new clauses, I will consider new clauses 24 to 28 and 31 together before speaking to new clause 29 separately.

These clauses cover a broad range of issues, including the gathering and using of data and matters relating to the automated residency checks under the EU settlement scheme. As I have said previously, securing the rights of citizens has always been our priority and we have delivered on this commitment. The draft withdrawal agreement published on 14 November 2018 guarantees the rights of EU citizens and their family members living in the UK, and those of UK nationals living in the EU.

The basis of the withdrawal agreement aligns closely to that of existing free movement rules with respect to when a person becomes a permanent resident and, in the case of the EU settlement scheme, acquires settled status. Significantly, the withdrawal agreement states that this assessment should be based not only on length of residence but on the fact that a person is exercising EU treaty rights for the whole qualifying period. We have, however, gone further than this and are being more generous to all EU citizens in the UK and to those who arrived during the implementation period. We do not test whether a person is exercising treaty rights—for example whether they are in work, studying or have comprehensive sickness insurance. Eligibility is based on residence alone, subject to criminality and security checks.

As part of the application process we will, where an applicant provides a national insurance number, conduct an automated check of residence based on tax and certain benefit records from HMRC and the DWP. We know that most EU citizens will have had some interaction with these departments and that this could demonstrate an applicant’s residence, either for the whole five-year period to qualify for settlement, or in part. While it is optional for an applicant to use the automated checks to prove their period of residency, in the test phases most have done so.

To date, 80% of the decisions made have been on the basis of this data alone. Where data exists, the automated checks replace the need for the applicant to submit any other form of evidence. The automated checks happen in real time as the application is completed, and the applicant is informed whether there is enough data to qualify for either settled or pre-settled status. Feedback from the three trial phases to date shows that people overwhelmingly like the simplicity of having their residence proved for them by these checks. The applicant is immediately informed if they need to provide additional documents and prompted to provide such documentation before completing their application.

In such instances, we will accept a range of documents as evidence, and they can be submitted digitally as part of the online application process. Where the applicant accepts the result of the automated check, no further evidence is required, and they will, subject to identity, security and criminality checks, be granted either settled or pre-settled status. The rules for assessing continuous residence are already set out in the immigration rules. The automated checks simply apply those principles to the data provided by HMRC and the DWP. New clauses 26 and 28, although well intentioned, are therefore unnecessary.

I understand the sentiment behind new clauses 24, 25 and 27, on publishing details of the automated residency checks in the scheme, as well as our memorandum of understanding with HMRC and the DWP. We will of course be completely transparent on how those checks work, as it is to everyone’s benefit for us to do so. I confirm that we will publish the MOU before the scheme is fully launched. We will also publish further materials, including more guidance on why automated checks may not return the expected data. The EU settlement scheme is still in the test phase, and it is important that we continue to amend our processes and design as we progress through the phased roll-out. I hope that offers reassurance to hon. Members.

On new clause 31, it may be helpful if I explain the different stages of the application process. When an applicant receives a wholly or partially unsuccessful result from the automated residency check, they are still in the middle of the application process and they have completed only some of the online form. They have therefore not yet submitted an application. Informing an applicant of why data has not matched is likely to increase the risk of fraud and identity abuse. The new clause would change the focus of the scheme from granting status to investigating the data quality of employers or of the DWP and HMRC. We consider that a distraction that would cause unnecessary delays for applicants.

I am sure all hon. Members on this Committee share my desire to keep the application process simple and quick in providing results. For the reasons I have given, the new clause is not consistent with those aims. In most cases, it would be far simpler and more straightforward for applicants to submit other evidence to prove residence, rather than seeking to resolve why data has not matched. Of course, the applicant can take up that issue with HMRC or the DWP if they wish. It is already the case that applicants, like anyone else, can ask Government Departments what data is held about them and get incorrect information rectified, as per article 16 of the general data protection regulation.

Our guidance includes a suggested list of documents that could be provided as additional evidence. Examples include bank statements, a letter from a general practitioner, and certificates from school, college, university or an accredited educational or training organisation. I assure hon. Members that we will continue to work to improve the match rates of the automated checks. The test phase gives us the opportunity to test the EU settlement scheme and to make improvements to the process.

New clause 29 seeks to prevent information from those who apply to the EU settlement scheme from being passed to immigration enforcement. Let me confirm that we fully comply with all statutory responsibilities when processing data. The ways in which this information may be processed are set out in the Home Office’s “Borders, immigration and citizenship: privacy information notice”, which is available on gov.uk. Decisions on whether information should be shared with immigration enforcement are made on a case-by-case basis. It is important that the Home Office uses data in ways that are compatible with the purpose for which it is collected—for example, to assist future citizenship and passport applications and, if needs be, to combat immigration offences.

To conclude, I thank hon. Members for raising these important issues, but I hope the assurances I have provided will lead them not to press their new clauses.

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[Stuart C. McDonald]

I beg to move, That the clause be read a Second time.

I will be very short, because this new clause is essentially tied up with the group we have just debated. Because the automated checks involve information passing to DWP and HMRC, the role of the independent chief inspector of borders and immigration should be extended so that they have the power to look under the bonnet, as it were, of both to see what is happening and to ensure that the process is running smoothly and appropriately. That is the new clause in a nutshell. I look forward to the Minister’s response.

[Afzal Khan]

This is a sensible amendment. The independent chief inspector of borders and immigration plays a vital role in inspecting and reporting on Home Office activities. Where the EU settlement scheme overlaps with other Departments, it is important that the inspector has the remit to inspect those. There is some ambiguity about the oversight of the EU settlement scheme if there is no deal. The withdrawal agreement makes it clear that if there is a deal, there will be an independent monitoring authority established to oversee the scheme.

The Minister, in her letter to me on 31 January, set out that if there is no deal, the independent chief inspector of borders and immigration will fulfil that function. Will they get any additional funding to carry it out? Will the Minister expand their remit to cover other Departments, to make sure the inspections are not limited in scope?

[Caroline Nokes]

I thank the hon. Member for Cumbernauld, Kilsyth and Kirkintilloch East for new clause 30. However, it is unnecessary. The UK Borders Act 2007 allows the independent chief inspector to inspect the efficiency and effectiveness of services provided by any person acting in relation to the discharge of immigration, nationality, asylum and customs functions. The EU settlement scheme is primarily an immigration function. Therefore, the independent chief inspector of borders and immigration already has the powers to inspect Government Departments involved in the EU settlement scheme application process, and that includes activities undertaken by the Department for Work and Pensions and Her Majesty’s Revenue and Customs in support of the EU settlement scheme application process. I therefore request the hon. Gentleman to withdraw the new clause.

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[Stuart C. McDonald]

The new clauses highlight in different ways the concern over significant increases in costs relating to the use of the migration system. Scrapping the settled status application fee was very welcome. New clause 32 would simply enshrine that in law and ensure that any replacement scheme did not attract a fee. That territory has largely been covered by the hon. Member for Sheffield Central earlier, and I will not repeat what he said.

Will the Minister confirm that there will be no fee for seeking an administrative review of any refusal of settled status? What assessments have been made of the costs of future centres that people are required to attend if they need help to scan documents, for example?

New clause 39 allows for a debate on the skills charge of £1,000 for an employee for 12 months and £500 for every subsequent six months. This is a significant tax on employing a worker from overseas. It is not a subtle tax and seems to be based on the false premise that firms that recruit from overseas are the ones that fail to invest in training at home. That is not the case. Comparatively few businesses recruit from outside the EEA currently. Are we really going to impose a significant levy on many thousands of additional businesses, simply because it is proving impossible for them to recruit locally?

Finally, new clause 45 concerns an issue that I have raised with the Minister on a number of occasions and that I feel strongly about: the system of charging people who are entitled to British citizenship by registration, but who are struggling to meet the exorbitant fees, which have escalated to over £1,000. If they are entitled to register as British, that would give many EEA nationals a more secure status than settled status. It is important to emphasise that when Parliament changed the rules on nationality so that birth in the UK was no longer enough to secure British citizenship, it was careful to seek to protect those who would not qualify automatically, but for whom the UK was genuinely home. The debates from the British Nationality Act 1981 show that Parliament envisaged a straightforward automatic grant if certain criteria were met. The fee at that time was just £35. We are not asking for a return to that level, but simply for a level that reflects the financial cost to the Home Office, which is in the region of £300,000, although I do not have the exact figure to hand.

An early-day motion on this topic achieved extensive cross-party support, as did a Backbench Business debate, which I believe happened last year. Again, I ask the Minister to simply listen to colleagues from both sides of the House. We are talking about people who are entitled in law to British citizenship, and they should not be prevented from obtaining that citizenship merely by an exorbitant fee. The Home Secretary himself recognised that it was a heck of a lot of money to be charging children, so I hope the Home Office will stop charging that sort of sum.

[Afzal Khan]

We support all these new clauses. I will speak briefly on new clause 38, which is in my name.

New clause 38 has three distinct provisions. The first would ensure that EEA and Swiss nationals applying for a visa are not charged above the cost price for that visa. As with many of our amendments, we would prefer that this apply to all migrants, but the scope of the Bill required us to narrow the new clause. The Home Office makes a profit of up to 800% on immigration applications from families, many of whom will not be well off. These applications will often be turned down on technicalities, forcing families to apply and pay again. As EEA nationals join migrants from the rest of the world coming into the UK under work visas, the risk of debt bondage increases. If workers are required to pay high fees for work visas, they will be vulnerable to exploitation and may be left working to pay off debts to recruiters.

The independent chief inspector of borders and immigration has completed an inspection of policies and practices relating to charging and fees. According to his website, he sent the report to the Home Office on 24 January. It would have been helpful to have it in preparation for this discussion. Can the Minister tell us when her Department will publish the report?

The second part of the new clause stipulates that no child with entitlement to register for British citizenship should be required to pay a fee. The principle is that those children, given their entitlement to British citizenship, will not be required to pay fees to realise that entitlement. This was the intention of the British Nationality Act 1981, which ended the principle that being born in the UK in itself makes someone British, when it gave no discretion to the Secretary of State, other than the formal role of registering the citizenship of any person with the entitlement.

The third part of the new clause would require that anyone naturalising as a British citizen should not pay above cost price. It is important to keep the questions of immigration and nationality separate, and to keep entitlement and naturalisation separate as well, despite the Government’s attempt to blur that distinction.

The fees are now £1,012 for children and £1,206 for adults. That is an enormous amount, and it disproportionately affects BME people and children under local authority care. The effect of being unable to pay these fees is that British people are subject to the hostile environment, including detention and temporary deportation, which is wholly unjust.

[Caroline Nokes]

I am grateful to the hon. Members for Cumbernauld, Kilsyth and Kirkintilloch East, for Paisley and Renfrewshire North and for Manchester, Gorton for having tabled new clauses 32, 38, 39 and 45.

It may be helpful to provide some background on this issue. Fees for border, immigration and citizenship products and services have been charged for a number of years, and they play a vital role in our country’s ability to run a sustainable system that minimises the burden on taxpayers. Each year, income from fees charged contributes enormously towards the running of our border, immigration and citizenship system. The charging framework for visa and immigration services delivered £1.35 billion in income in the last financial year. It is therefore true to say that fees paid by users play an absolutely critical role in this country’s ability to run an effective and sustainable system, and as I am sure members of the public rightly expect, to minimise the burden on UK taxpayers.

I also want to explain from the outset that we already have a legislative framework in place that governs fees. Fees are set and approved by Parliament through fees statutory instruments made under powers in the Immigration Act 2014. As hon. Members will be aware, the Prime Minister publicly confirmed that

“when we roll out the scheme in full on 30 March, the Government will waive the application fee so that there is no financial barrier for any EU nationals who wish to stay”—[Official Report, 21 January 2019; Vol. 653, c. 27.]

We will be amending existing fees legislation to implement that decision.

Outside of applications made under the EU settlement scheme, immigration and nationality fees legislation has always provided for some limited exceptions for paying application fees for limited and indefinite leave to remain. However, those exceptions are limited to specific circumstances, such as for those seeking asylum or fleeing domestic abuse, or where the requirement to pay the fee would lead to a breach of the European convention on human rights. Fee exceptions do not extend to applications made by individuals who are seeking to register or naturalise as a British citizen. That is because becoming a citizen is discretionary and not necessary to enable individuals to live, study and work in the UK, or to be eligible to benefit from appropriate services. Other exemptions are provided by separate regulations governing the immigration health surcharge.

To make provisions that are specific to certain nationalities as part of this Bill would be unfair to all users of the border, immigration and citizenship system.

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[Stuart C. McDonald]

I beg to move, That the clause be read a Second time.

New clause 51 relates to refugee family reunions. Again, I have encountered a problem with the scope of the Bill, as my new clause would extend the scope of refugee family reunion rules to EEA and Swiss nationals. That would obviously be a fairly rare occurrence; nevertheless, I think some of these amendments and new clauses would establish a principle. As I said to the Immigration Minister not long ago, if it gives rise to inequalities and problems, the answer is for the Government to equalise the situation by raising the standards in relation to non-EEA nationals who are also refugees.

Due to the restrictive rules about who is eligible, many people are not allowed to reunite under family reunion rules. Currently, the UK immigration rules state that

“adult refugees in the UK can be joined via family reunion by their spouse/partner and their dependent children who are under the age of 18.”

Those restrictions mean, for example, that parents are not automatically able to bring their children who have turned 18 to the UK, even if the child is still dependent on them and has not yet married or formed their own family. While the family reunion guidance allows some cases outside the rules to be granted in exceptional circumstances, in reality that rarely happens.

Furthermore, unlike adult refugees, children who are in the UK alone and have refugee status have no right to be reunited with even their closest family members. Again, in this regard the UK is an outlier. These are children who have often endured hardship and trauma and have been recognised by the Government as having the right to stay in the UK. They now find themselves alone in an unfamiliar country and having to navigate the immigration system themselves.

The Government argue that granting refugee children the right to sponsor family members to come to the UK would be a pull factor and incentivise or force more children to make dangerous journeys to the UK. However, there is no evidence to support that claim, and in every other EU member state refugee children can sponsor close relatives to join them.

In the 12 months before September 2018, for instance, 811 separated children were granted asylum in the UK, more than a quarter of whom had fled Eritrea. These children have been recognised by the Government as being in need of international protection, where it is not safe for them to be returned to their home country. Where possible, and where it is in their best interest, children should be able to be with their parents. Granting separated children family reunion rights would allow that to happen. That, in short, is what the new clause seeks to put us on the road to achieving.

The other point I want to make is that Parliament of course debated all this and heard all the Government’s arguments during the Second Reading debate on the Refugees (Family Reunion) (No. 2) Bill, promoted by my hon. Friend the Member for Na h-Eileanan an Iar (Angus Brendan MacNeil). Considerable effort was made to ensure that sufficient Members would be present at a Friday sitting to debate that private Member’s Bill. There was a vote and there was overwhelming support for its Second Reading. There is growing frustration about the delay in bringing forward the money resolution to enable that Bill to go to the next stage—Committee. I would therefore like the Minister to explain what is happening and when we will see the Bill get to Committee, because we are running out of time and it would be outrageous if all that good work was stymied by Government use of procedures.

[Afzal Khan]

We support this new clause. I spoke in the Second Reading debate on the private Member’s Bill that would have implemented these changes. I commend the hon. Member for Cumbernauld, Kilsyth and Kirkintilloch East for once again bringing this issue to our attention through this Bill.

[Caroline Nokes]

I am grateful to the hon. Member for Cumbernauld, Kilsyth and Kirkintilloch East, along with the hon. Member for Paisley and Renfrewshire North, for raising, through new clause 51, the important issue of refugees’ rights to family reunion.

The new clause is designed to allow EEA and Swiss national refugees, including those who are nationals of EEA countries that are not part of the EU, to sponsor certain family members to join them in the UK. I spoke last week about the inadmissibility of asylum claims from the EU and about the Spanish protocol and do not intend to repeat today what I said then. It is the Government’s view, which I hope all members of the Committee share, that all Swiss and EEA nationals are from safe countries and are highly unlikely to suffer a well-founded fear of persecution or serious harm there, save in very exceptional circumstances. For those reasons and because we do not foresee a change in these circumstances, we intend to continue our policy on the inadmissibility of asylum claims from EU nationals, as well as treating claims from Swiss and EEA nationals as clearly unfounded, post EU exit.

I hope that hon. Members can see that treating asylum seekers from Switzerland and the EEA differently from those from the rest of the world on the grounds of their nationality would be illogical and discriminatory. It would be unlikely to comply with our equalities obligations and would offer a clear avenue of challenge on human rights grounds. I appreciate that that may not have been the intention behind the new clause, but it would be its effect. In any event, in a deal scenario, which remains the Government’s priority, we will already be providing family reunification rights. New clause 51 is therefore unnecessary to secure the rights of EEA and Swiss nationals to sponsor their family members.

I know that hon. Members are keen to address refugee family reunion more broadly, and I am conscious that the hon. Member for Cumbernauld, Kilsyth and Kirkintilloch East asked a question about the private Member’s Bill promoted by the hon. Member for Na h-Eileanan an Iar. Of course, it is the usual channels that decide money resolutions. That is entirely outside my hands, but I can comment on the Government’s family reunion policy. That provides a safe and legal route to bring families together. It allows adult refugees who are granted protection in the UK to sponsor a partner and children under 18 to join them, if they formed part of the family unit before the sponsor fled their country. Under that policy, we have granted visas to more than 26,000 partners and children of those granted protection in the UK in the past five years; that is more than 5,000 people a year.

Furthermore, our family reunion policy offers clear discretion to grant leave outside the immigration rules. That caters for children over 18 where there are exceptional circumstances or compassionate factors—for example, where they would be left in a conflict zone or a dangerous situation.

The types of family member that the new clause is aimed at can apply under alternative routes. Under the immigration rules, adult refugees can sponsor adult dependent relatives. That includes parents, grandparents, children over 18 and siblings over 18 living overseas where, because of age, illness or disability, the person requires long-term personal care that can be provided only by their sponsor in the UK, and that will be without recourse to public funds.

Moreover, there are separate provisions in the rules to allow extended family who are adult refugees in the UK to sponsor children to come here where there are serious and compelling family or other considerations. That is an important measure, as it enables children to join family members in the UK through safe and legal means.

It is imperative that we think carefully about this issue. Adopting new clause 51 could significantly increase the number of people who could qualify to come here, not just from conflict regions, and irrespective of whether they needed international protection. That would risk reducing our capacity to assist the most vulnerable refugees.

We must also consider community and local authority capacity. I understand that this is a complex and emotive issue, which is why we are listening carefully to calls to extend family reunion and closely following the passage of the private Members’ Bills on this subject, and will continue our productive discussions with key partners. It is particularly important to me that hon. Members are reassured that we are taking this matter seriously, and I hope that I have gone some way in ensuring that. For those reasons, I invite the hon. Member for Cumbernauld, Kilsyth and Kirkintilloch East to withdraw new clause 51.

--- Later in debate ---

[Stuart C. McDonald]

These new clauses relate to the offence of illegal working, which we heard about in the evidence to the Committee. The substance of that evidence was essentially that the offence of illegal working is driving people into exploitative employment relationships. Obviously, that is complete anathema to the Government’s stated anti-slavery objectives.

We heard from Focus on Labour Exploitation, whose research has clearly shown that undocumented people are unlikely to come forward to labour inspectorates about abuse if they fear immigration repercussions, which has a triple effect. First, they are not identified as victims or supported. Secondly, abusive employers can operate with relative impunity because the immigration regime effectively hands them exploitable workers. Thirdly, that serves to undercut other workers, who have legal rights, thereby dragging the whole labour market down.

I am loth to see the offence extended to EEA and Swiss nationals. This offence is a year or two old now; has the Home Office done any research on the impact of its creation? What have been the implications on the Government’s efforts to tackle modern slavery? At the very least, we need to be reassured that the Home Office is alive to these concerns and will take them seriously. In the absence of such reassurance, we cannot just head off and extend the scope of those offences further.

[Afzal Khan]

We support the new clauses. As has been set out by the TUC and Focus on Labour Exploitation, it is essential that migrants are able to claim their rights at work. That means not being arrested for criminal offences when attempting to report abusive employers. Our labour market enforcement capacity is one of the weakest in Europe. We need to set high standards for wages and workers’ conditions, significantly improve our inspection capacity, and remove the offence of illegal working. This offence makes it less likely that people will come forward to the UK national referral for trafficking and modern slavery.

We know that many trafficking victims are already in immigration detention. In her evidence to us, Bella Sankey from Detention Action provided a powerful example of a Chinese woman who was a victim of trafficking. She was picked up at a brothel after a tip-off, but instead of being treated as a victim of modern-day slavery and trafficking, she was taken to a detention centre and held for six months. Clearly, many things went wrong at many stages of that woman’s journey through the immigration system, but removing the offence of illegal working would at least help to remove one barrier to her getting the help she needs.

[Caroline Nokes]

I am grateful to hon. Members for tabling these amendments. I also welcome the opportunity to explain how the offence of illegal working will be applied to EEA and Swiss nationals after we have left the EU, and how our approach to the EU settlement scheme will minimise any risk of those nationals being subject to the offence of illegal working post-EU exit. The Government have made clear our commitment to protecting the rights of EEA and Swiss nationals who are resident in the UK before exit. I recognise the concerns and the intention behind both new clauses, but they are unnecessary and discriminatory. They are also incompatible with our commitment in the White Paper to establishing a single, skills-based immigration system for all migrants coming to live and work in the UK.

--- Later in debate ---

Today, the GLAA has to license four sectors and oversee the whole labour market with a staff of just 123 people. If we want a labour market that provides decent work and conditions to all in the future, the resources must be in place to enable that to happen. Although the new clause calls for effective licensing to protect migrant workers in sectors where short-term visas may be particularly prevalent, and where there is an increased risk of exploitation, it will also be important for Ministers to provide the resources needed to make such protection a reality.

[Afzal Khan]

We support the new clause to expand the remit of the GLAA. The GLAA performs a vital role in safeguarding the rights of workers and it is right that that should extend to the widest categories of vulnerable workers. My final point, which my hon. Friend has already made, is that the GLAA is chronically under- funded. We need to have more respect for the job it does.

[Caroline Nokes]

I thank the hon. Member for Stretford and Urmston for introducing the new clause and giving us further opportunity to consider the critical matter of protecting the rights of migrant workers.

New clause 57 raises an important issue and I appreciate the intention behind it. As I indicated, I share the hon. Member’s concern that overseas workers—indeed, all workers—should be safe from abusive employment practices. Although I sympathise with the sentiment behind the new clause, I do not think it would be appropriate to change the Bill in the way proposed, for reasons I will explain.

First, it presumes that the employment practices for the sectors mentioned in the new clause are the same as the sectors currently licensed by the GLAA. They are not. The Gangmasters (Licensing) Act 2004 applies only to the agricultural, shellfish gathering, and food packaging and processing sectors, as that employment method is particular to those sectors. While gangmasters may be used in some cases, the practice is not prevalent in the supply of labour in the sectors covered by this new clause. In some sectors, such as construction, many workers are self-employed and in others workers are recruited directly, such as with people employed to do cleaning work.

If this new clause were to be passed, the consequence would be that many thousands of extra businesses—potentially every café or care home—would have to register as a gangmaster, with considerable expense but potentially little benefit. The new clause would in effect extend the scope of the Gangmasters (Licensing) Act 2004 to construction, cleaning, care or hospitality work, but only where that work is undertaken by EEA or Swiss nationals, and only where those individuals have come by that work through a particular route. That restriction does not sit comfortably in the existing regime, which defines scope through work sector and not through the characteristics of the individuals undertaking the work. The effect of the new clause would be to create a two-tier system, resulting in EEA and Swiss nationals receiving a greater degree of labour market protection.

The Government are fully committed to protecting the rights of migrant workers and I reassure the hon. Lady that the Government are giving active and serious consideration to these matters. I hope to be able to say more on that in the coming weeks. As I set out at length in earlier sittings, it is of the highest importance that everyone working within our economy is safe and is treated fairly and with respect. I am proud of the Government’s track record on this issue, with the introduction of the landmark Modern Slavery Act 2015 and the further powers we have given to the GLAA. We will not be complacent.

Let me be clear: migrants working lawfully in the UK are entitled to all the protections of UK law while they are here, whether it is entitlement to the minimum wage, health and safety legislation, working conditions, working time rules, maternity and paternity arrangements, the right to join a trade union, the right to strike, statutory rights, holiday and sick pay, and any of the other myriad protections that exist in UK law for workers. They apply to those who are in the UK on work visas every bit as much as they do for the resident workforce. That applies to both migrant workers who are here under the current immigration system and to those who may come in the future, under the new immigration system.

The Immigration Act 2016 created a new power to extend statutory licensing of gangmasters to new commercial sectors by secondary legislation, so the proposed new clause is not necessary. Although I am loth to say it, this demonstrates yet again that we could make the changes through the immigration rules, which might provide a convenient route to do so. In deciding whether to extend gangmaster licensing, the Government would need clear evidence that that is the right course and would draw advice from the Director of Labour Market Enforcement. I hope that having further considered the wider impacts of this new clause and heard my assurance that the protection of migrant workers is at the forefront of the Government’s thinking, the hon. Lady will feel able to withdraw the proposed new clause.

[Caroline Nokes]

As we have now concluded the Bill’s Committee stage, I thank both you, Mr Stringer, and your co-Chair, Sir David Amess, for your effective chairmanship and for keeping us all in order. It might be only me who tried your patience—I am sure other Members have a view on that. I know you have been advised throughout by the Clerks to the Committee, who have acted with a great deal of professionalism. I extend my gratitude to them.

I thank all the Committee members for their thoughtful consideration of the issues we have debated over the past few weeks. Although we by no means agreed on everything, we debated important points in a constructive spirit and considered a wide range of matters very carefully. I am particularly grateful to the Opposition spokespeople, the hon. Members for Manchester, Gorton and for Cumbernauld, Kilsyth and Kirkintilloch East—I have said that constituency name an awful lot over the past fortnight; I hope I have pronounced it correctly—for their valuable contributions on a range of important issues. I suspect those will not be their last words on the Bill.

I thank the policemen and the Doorkeepers, who kept us safe and ensured that everyone received the support they needed, and the staff of the Official Report, who ensured that all our pearls of wisdom were faithfully recorded. Finally, I thank my Bill team, who have been unfailingly good humoured in keeping me in line and helping me through my first Bill Committee in this role. I am very much indebted to them. I look forward to considering the Bill during its next stage.

[Afzal Khan]

May I add my thanks to you, Mr Stringer, and your colleague, Sir David Amess, for the excellent job you have done of steering us through the Bill? I thank the Clerks for all the help they have provided, not only here but outside this room. I also thank all the Committee members; like the Minister, this is my first attempt at a Bill Committee, so I am particularly grateful to my Front-Bench colleagues for all their help. Let us not forget all the other staff who helped us, too. I look forward to the next stage of the Bill.

[The Chair]

I thank the Minister and the shadow Minister for their kind words, and I thank Committee members for their good humour and for getting through the business so quickly and effectively.

Question put and agreed to.

Bill accordingly to be reported, without amendment.

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

Afzal Khan Excerpts

Tuesday 5th March 2019 Public Bill Committees

[The Chair]

I have some housekeeping announcements. Hon. Members should ensure that electronic devices are switched to silent or off. I remind them that tea and coffee are not allowed in the room during sittings.

We now resume line-by-line consideration of the Bill, starting with new clauses. Some new clauses have already been debated as part of earlier groups. There will be no debate on them, but Members will be able to move them formally at the appropriate point if they so wish. Members will need to indicate to me if they intend to move any of the new clauses.

New Clause 1

Time limit on detention for EEA and Swiss nationals

“(1) The Secretary of State may not detain any person (“P”) who has had their right of free movement removed by the provisions of this Act under a relevant detention power for a period of more than 28 days from the relevant time.

(2) If “P” remains detained under a relevant detention power at the expiry of the period of 28 days then—

(a) the Secretary of State shall release P forthwith; and

(b) the Secretary of State may not re-detain P under a relevant detention power thereafter, unless the Secretary of State is satisfied that there has been a material change of circumstances since “P’s” release and that the criteria in section [Initial detention for EEA and Swiss nationals: criteria and duration] are met.

(3) In this Act, “relevant detention power” means a power to detain under—

(a) paragraph 16(2) of Schedule 2 to the Immigration Act 1971 (detention of persons liable to examination or removal);

(b) paragraph 2(1), (2) or (3) of Schedule 3 to that Act (detention pending deportation);

(c) section 62 of the Nationality, Immigration and Asylum Act 2002 (detention of persons liable to examination or removal); or

(d) section 36(1) of UK Borders Act 2007 (detention pending deportation).

(4) In this Act, “relevant time” means the time at which “P” is first detained under a relevant detention power.”—(Afzal Khan.)

Brought up, and read the First time.

[Afzal Khan (Manchester, Gorton) (Lab)]

I beg to move, That the clause be read a Second time.

[The Chair]

With this it will be convenient to discuss the following:

New clause 2—Initial detention for EEA and Swiss nationals: criteria and duration—

“(1) Any person (“P”) who section [Time limit on detention for EEA and Swiss nationals] applies to may not be detained under a relevant detention power other than for the purposes of examination, unless the Secretary of State is satisfied that—

(a) the person can be shortly removed from the United Kingdom;

(b) detention is strictly necessary to affect the person’s deportation or removal from the United Kingdom; and

(c) the detention of “P” is in all circumstances proportionate.

(2) The Secretary of State may not detain any person (“P”) who section [Time limit on detention for EEA and Swiss nationals] applies to under a relevant detention power for a period of more than 96 hours from the relevant time, unless—

(a) “P” has been refused bail at an initial bail hearing in accordance with subsection (4)(b) of section [Bail hearings]; or

(b) the Secretary of State has arranged a reference to the Tribunal for consideration of whether to grant immigration bail to “P” in accordance with subsection (1)(c) of section [Bail hearings] and that hearing has not yet taken place.

(3) Nothing in subsection (2) shall authorise the Secretary of State to detain “P” under a relevant detention power if such detention would, apart from this section, be unlawful.

(4) In this section, “Tribunal” means the First-Tier Tribunal.

(5) In this section, “relevant detention power” has the meaning given in section [Time limit on detention for EEA and Swiss nationals].”

This new clause is consequential on NC1.

New clause 3—Bail hearings for EEA and Swiss nationals—

“(1) Before the expiry of a period of 96 hours from the relevant time, the Secretary of State must—

(a) release any person (“P”) who section [Time limit on detention for EEA and Swiss nationals] applies to;

(b) grant immigration bail to “P” under paragraph 1 of Schedule 10 to the Immigration Act 2016; or

(c) arrange a reference to the Tribunal for consideration of whether to grant immigration bail to “P”.

(2) Subject to subsection (3), when the Secretary of State arranges a reference to the Tribunal under subsection (1)(c), the Tribunal must hold an oral hearing (“an initial bail hearing”) which must commence within 24 hours of the time at which the reference is made.

(3) If the period of 24 hours in subsection (2) ends on a Saturday, Sunday or Bank holiday, the Tribunal must hold an initial bail hearing on the next working day.

(4) At the initial bail hearing, the Tribunal must—

(a) grant immigration bail to “P” under paragraph 1 of Schedule 10 to the Immigration Act 2016; or

(b) refuse to grant immigration bail to “P”.

(5) Subject to subsection (6), the Tribunal must grant immigration bail to “P” at a bail hearing unless it is satisfied that the Secretary of State has established that the criteria in subsection 1 of section [Initial detention for EEA and Swiss nationals: criteria and duration] are met and that, in addition—

(a) directions have been given for “P’s” removal from the United Kingdom and such removal is to take place within 96 hours;

(b) a travel document is available for the purposes of “P’s” removal or deportation; and

(c) there are no outstanding legal barriers to removal.

(6) Subsection (5) does not apply if the Tribunal is satisfied that the Secretary of State has established that the criteria in subsection 1 of section [Initial detention for EEA and Swiss nationals: criteria and duration] are met and that there are very exceptional circumstances which justify maintaining detention.

(7) In subsection (5) above, “a bail hearing” includes—

(a) an initial bail hearing under subsection (2) above; and

(b) the hearing of an application for immigration bail under paragraph 1(3) of Schedule 10 of the Immigration Act 2016.

(8) In this section, “Tribunal” means the First-Tier Tribunal.

(9) The Secretary of State shall provide to “P” or “P’s” legal representative, not more than 24 hours after the relevant time, copies of all documents in the Secretary of State’s possession which are relevant to the decision to detain.

(10) At the initial bail hearing, the Tribunal shall not consider any documents relied upon by the Secretary of State which were not provided to “P” or “P’s” legal representative in accordance with subsection (8), unless—

(a) “P” consents to the documents being considered; or

(b) in the opinion of the Tribunal there is a good reason why the documents were not provided to “P” or to “P’s” legal representative in accordance with subsection (8).

(11) The Immigration Act 2016 is amended as follows—

(a) After paragraph 12(4) of schedule 10 insert—

“(4A) Sub-paragraph (2) above does not apply if the refusal of bail by the First tier Tribunal took place at an initial bail hearing within the meaning of section [Bail hearings for EEA and Swiss nationals] of the Immigration and Social Security Co-ordination (EU Withdrawal) Act 2019.”.”

This new clause is consequential on NC1.

New clause 4—Commencement of provisions on detention of EEA nationals—

“(1) Sections [Time limit on detention for EEA and Swiss nationals], [Initial detention for EEA and Swiss nationals: criteria and duration] and [Bail hearings for EEA and Swiss nationals] come into force three months after the day on which this Act is passed.”

This new clause is consequential on NC1.

[Afzal Khan]

Good morning, Mr Stringer. The Bill has the far-reaching potential to make many more people liable to immigration detention. Despite estimating that 26,000 more people could be liable, the Government have carried out no assessment of the Bill’s impact on the detention estate. Our detention system is broken. Its most glaring failure is the lack of a time limit on detention. We are the only country in Europe that detains people indefinitely.

The Minister has previously shown some openness on the issue. She will be well aware of the breadth of support for a time limit, including from members of her own party. Labour’s new clauses have been signed by the SNP, the Green party, the Liberal Democrats and Conservative MPs. I am keen to work constructively with the Government. The new clauses set out the position that we want, whereby independent checks and balances ensure that immigration detainees do not have fewer rights than people in the criminal justice system.

As is clear from the new clauses that I have tabled, our preference is for a time limit on detention for everyone, no matter what country they are from, but to get the provision within the scope of the Bill, we have narrowed it to just those who lose their right to free movement as a result of the Bill. I will confine my remarks today to that group.

I am grateful to all the organisations that have been making the case for a time limit on immigration detention and, in particular, to Detention Action, Liberty and Refugee Tales for their help with the drafting of the provision.

Before getting into the detail of the new clauses, I will give some background to the arguments for a time limit on immigration detention. Labour has been making the case for a time limit for some time. We called for one in our 2017 manifesto. The argument can be made from multiple angles. This is a rule-of-law issue. The Immigration Law Practitioners’ Association, the Bar Council and the Law Society all support a time limit. Wherever the state deprives someone of their liberty, as happens with immigration detention, there should in principle be independent judicial oversight and time limits at every stage. Detention is currently an administrative process whereby the Government are allowed to mark their own homework. The detention of Windrush people showed that current oversight is severely lacking.

This is a health issue. The British Medical Association supports Labour’s proposal. Its report entitled “Locked up, locked out: health and human rights in immigration detention” states:

“Depression, anxiety, and post-traumatic stress disorder…are the most common mental health problems, and women, asylum seekers, and victims of torture are particularly vulnerable. Even if it does not reach a clinical threshold, all immigration detainees will face challenges to their wellbeing during their time in detention.”

Those issues are worsened when detention is indefinite. There is a widespread crisis of self-harm in immigration detention. Stephen Shaw’s report on the issue found that the current safeguards for vulnerable people were not working effectively enough.

This is an equalities and human rights issue. The Joint Committee on Human Rights has called for a 28-day time limit and recommends using the Bill to implement it. The Equality and Human Rights Commission and Liberty support our new clause. The EHRC’s briefing for the debate points to various human rights articles violated by indefinite detention, including the European convention on human rights, the international covenant on civil and political rights and the United Nations convention against torture.

This is also a cost issue, as immigration detention simply does not work; the majority of people in immigration detention will later be released back into the community. That point was made by Her Majesty’s inspectorate of prisons and the independent chief inspector of borders and immigration in their joint report, as well as by the all-party parliamentary groups on refugees and on migration. The detention estate costs £30,000 per person detained per year, and a 2015 estimate put the total annual cost at £164.4 million. In addition, the Home Office last year announced that it had paid out £21 million in just five years for wrongfully detaining 850 people in immigration removal centres.

So there is a wealth of evidence from a number of different angles on the need for a time limit on immigration detention. The next question is why Labour has tabled these new clauses in particular. There is a lot in this group of new clauses, so if the Committee will allow me, I will briefly go through what each one would do and why it is needed.

New clause 1 prescribes an overall time limit of 28 days for all immigration detention, after which a person must be released and cannot be re-detained unless there is a material change of circumstances. We need this provision to avoid a cat-and-mouse situation in which the Government can detain someone for 28 days, release them and then immediately detain them for another 28 days.

The reason for 28 days, as opposed to some other time limit, came up in evidence sessions and has been questioned elsewhere. Home Office guidance says that detention should be used only when removal is imminent—defined as three to four weeks—which is a maximum of 28 days, so 28 days is really the Home Office’s definition. Although, since 2015, the detention population and average length of detention have decreased, the number of people detained for longer than six months has increased. The new clause would put the commitment to detain only if removal is imminent on a statutory footing for the first time.

New clause 2 sets out the general criteria for detention, preventing detention unless a person can shortly be removed from the United Kingdom and their detention is strictly necessary to effect their deportation or removal from the United Kingdom, and stating that their detention must in all circumstances be proportionate. This is intended to ensure that detention will be used only when really necessary.

New clause 3 provides for a system of automatic bail hearings. There is currently an immigration bail provision at four months, and the Government are piloting a two-month timeframe. However, we believe that that should come in much sooner—after 96 hours—to bring immigration in line with the criminal justice system. Bail hearings after two or four months are often too little, too late. We also believe that bail hearings should allow for release; at the moment, a detainee may only be bailed or detained following a hearing. The president of the first-tier immigration appeal tribunal said in evidence to the JCHR that the tribunal would need few additional resources to review all immigration detention cases. He favoured such a review to limit the use of detention and ensure that it is used for the shortest time necessary.

Before I conclude, I will touch briefly on foreign national offenders, who also came up during our evidence sessions. Labour’s view is that we should not have an immigration detention system that treats foreign national offenders differently from everybody else. First, many people detained as foreign national offenders will in fact be victims of trafficking and modern-day slavery who were coerced into criminality. The Government have made a lot of noise about their commitment to tackling modern-day slavery, but the fact is that victims are still routinely detained for extended periods, despite showing extreme signs of distress and vulnerability.

Secondly, to go back to the rule of law argument, people who have been convicted of a criminal offence will have served their sentence. Continued detention, and therefore punishment, cannot be justified by their initial trial and sentencing, unless otherwise specified by a judge or similar. Thirdly, in practical terms, the Government will have had ample time, while someone is serving their custodial sentence, to prepare for deportation upon their release.

There is a separate issue about people who are deemed to be a risk to national security. There currently exists a separate system for immigration detention cases that relate to national security. Bail applications are heard through the Special Immigration Appeals Commission, rather than the normal First-tier Tribunal, and separate law, regulations and case law govern the commission’s operation. Although the SIAC system is in need of reform—we believe that indefinite detention is not justified in any circumstances—there is a case for this to be addressed and reformed separately. We would be happy to make that clear in our new clause on Report.

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

It is good to see you in the Chair again, Mr Stringer. I have spoken many times about immigration detention. I will essentially echo all the shadow Minister’s points, so I will be brief. As he said, there is cross-party support for these new clauses, and the Scottish National party is four square behind them.

Immigration detention for too long has become an accepted part of life, at least among politicians, but, for the reasons that the shadow Minister gave, I detect that that is changing, and not before time. Politicians have probably been out of step with the public in that regard. Every time I have a discussion with members of the public and explain to them the existing system of detention, they are actually quite horrified to hear what goes on out of sight and out of mind. Ultimately, we are talking about the indefinite deprivation of liberty in what are basically private prisons. There is little in the way of independent oversight, and all of this is done for administrative reasons. That is a huge invasion of fundamental rights.

We detain far too many people. The Minister will often say that the vast majority are not detained but are managed in the community. However, that is not the point. We are still talking about significant numbers of people—25,000 or so every year. That is a welcome improvement on previous years—let me put that on record—but there is a long way to go before we are anywhere near an acceptable position. We have a bloated immigration estate compared to many of our European neighbours, and we are still detaining far too many vulnerable people. The changes made in light of the first Shaw report have not made the difference that we would have expected or wanted so far.

As the shadow Minister said, half of all these people are released. Detention should be a matter of absolute last resort, but instead we are detaining so many people that we just release half of them again. That is completely unacceptable. The UK is an outlier in terms of international practice. This country has a long history of being very precious about the right to liberty, with severe and strict safeguards on the Government’s power to interfere with that.

We all know—I think it is inarguable—that detention is harmful. One key harm inflicted on detainees is the uncertainty—as has been evidenced in all sort of reports—of not knowing when their detention will come to an end. For all the reasons that the shadow Minister has given, there are no excuses for applying different rules to different people, and foreign national offenders should be included in the regime that we are proposing. We also need greater scrutiny of who goes into detention. Safeguards in relation to vulnerable people are still not working. Gatekeeping is not working.

These new clauses achieve two goals. They put in place a time limit and significantly improve oversight of who is being detained. I want to put on record my gratitude to all the organisations involved in drafting the new clauses, and to all sorts of organisations who, for many years, have documented the harm that is done by immigration detention and have kept it on the agenda, even when it was at severe risk of falling off.

There is a breadth of support for this new clause. The time limit is overdue. I think it will happen this time—I hope that is the case. Like the shadow Minister, I am keen to work with all parties, including the Government, to ensure that we put in place a system that is robust and fair but respects people’s right to liberty rather than detaining them for administrative reasons.

--- Later in debate ---

[Caroline Nokes]

I will come to time limits. We have seen from the amendments that have been tabled and from the commentary that there is no widespread agreement on what the time limit should be. If we look at countries around the European Union, there are differing time limits. One example that springs instantly to mind currently has a limit of 45 days, which is about to be doubled to 90 days.

Stephen Shaw looked at time limits in his re-review and made some comments about that, as Members will have seen. There is certainly scope, as I am sure my right hon. Friend the Home Secretary agrees, for us to look closely not only at different time limits around the world, useful though they are, but at some of the challenges we face in the UK with the documentation of individuals, so that we can best understand, were a time limit to be introduced, what the range might be.

[Afzal Khan]

The Minister referred to European countries. Is it not important to acknowledge the difference between two legal systems? The European system is more civil law-based, whereas others are more common law-based. They are not the same thing.

[Caroline Nokes]

The hon. Gentleman is absolutely right to point out that they are not the same thing. While we might draw on the experience and evidence from other countries, it is important that we have a system that works within our own legal system.

--- Later in debate ---

[Caroline Nokes]

The debate is ongoing. Members have made some forceful arguments in favour of a limit and, in the Home Office, we have considered reflecting on those very carefully indeed.

[Afzal Khan]

Is the Minister aware that Parliament has considered this idea for the limitation? Recently, there was a discussion on 90 days, and then 42 days, and this was for terror suspects. Both were rejected by the House. Does she not think that if 42 days for terrorists was rejected, we should not have it for immigrants?

[Caroline Nokes]

Perhaps the hon. Gentleman has made the point that there is not yet any agreement on reasonable time limits, given that, with both 90 days and 42 days—in this new clause we are discussing 28 days—there is a wide range of opinion on what a reasonable time limit might look like.

I wish to address—as I am sure the Chairman wants me to—the individual elements of the new clauses. First, and this has already been referenced, they would apply only to EEA and Swiss nationals. The effect of these new clauses would be to introduce a system that imposed time limits on the detention of individuals of certain nationalities but not on others. As I have said in relation to other amendments and clauses limited to EEA nationals, this would clearly be discriminatory on nationality grounds, going against Parliament’s proud history of promoting laws that protect human rights and protect individuals from discrimination. I cannot see any justification for Parliament to depart from those principles in the way proposed.

While new clause 1 would introduce a 28-day longstop time limit for exceptional cases, new clause 3 would provide for a 96-hour time limit. Both would have a major impact on our ability to remove and on the processes on which removal action is dependent. For example, in 2018, there were more than 8,500 removals directly from detention. More than 2,700 individuals were removed from the UK, having been detained for 29 days or more. We believe that introducing a 28-day longstop time limit would encourage people to change behaviours, so as to run down the clock to secure release. As it stands, a presumption of release after 96 hours, other than in the most restrictive of circumstances, would make it extremely difficult to remove any individuals from the UK.

--- Later in debate ---

[Caroline Nokes]

I thank the hon. Gentleman for that intervention. Of course it is not just unacceptable but not lawful, in the case of foreign national offenders, to detain people for very long periods with no realistic prospect of removal. The Home Office works incredibly hard, sometimes in difficult circumstances, to seek documentation from different Governments in order to be able to effect the removal of foreign national offenders.

I do not pretend that any of this is easy. However, an amendment to the Bill—tightly drawn as it is to end free movement—is perhaps the wrong place to seek to implement such a significant change. That does not mean that my mind is closed; far from it. From the views that have been expressed to me over the past 12 months and this morning, I appreciate that we certainly need to do more. That is why I welcome the proposals that Stephen Shaw put forward in his re-report last year. Indeed, the Home Secretary grasped those changes with enthusiasm. There will always be more to do on the issue of detention, and I am absolutely committed to doing it. As Stephen Shaw said in his recent report, the call for the 28-day time limit,

“has been articulated more as a slogan than as a fully developed policy proposal”,

and I am inclined to agree with him. I therefore respectfully ask the hon. Member for Manchester, Gorton to withdraw his amendment.

[Afzal Khan]

I thank the Minister for putting forward the Government’s position. We have had a good debate on the new clauses, but at this stage I am not minded to push for a vote. We will review the matter on Report. I beg to ask leave to withdraw the motion.

Clause, by leave, withdrawn.

New Clause 9

“Super-affirmative procedures for immigration rules

‘(1) The Immigration Act 1971 is amended in accordance with subsection (2).

(2) After section 3(2) insert—

“(2A) Any statement of the rules, or of any changes to the rules, which affect the rights and obligations of persons who will lose their right of freedom of movement under the provisions of the Immigration and Social Security Co-Ordination (EU Withdrawal) Act may not be made or have effect unless the Secretary of State has complied with subsections (2B) to (2F) below.

(2B) If the Secretary of State proposes to make changes to the rules under section (2A) above, the Secretary of State must lay before parliament a document that—

(a) explains the proposal; and

(b) sets it out in the form of a draft order.

(2C) During the period of 60 days beginning with the day on which the document was laid under subsection (2B) (the “60-day period”), the Secretary of State may not lay before Parliament a draft order to give effect to the proposal (with or without modification).

(2D) In preparing a draft order under section (2A) above, the Secretary of State must have regard to any of the following that are made with regard to the draft order during the 60-day period—

(a) any representations; and

(b) any recommendations of a committee of either House of Parliament charged with reporting on the draft order.

(2E) When laying before Parliament a draft order to give effect to the proposal (with or without modifications), the Secretary of State must also lay a document that explains any changes made to the proposal contained in the document under subsection (2B).

(2F) In calculating the 60-day period, no account is to be taken of any time during which Parliament is dissolved or prorogued or during which either House is not adjourned for more than 4 days.” —(Afzal Khan.)

This new clause would amend the Immigration Act 1971 to ensure that any changes to the UK’s Immigration Rules which affect EEA or Swiss nationals must be made under the super affirmative procedure.

Brought up, and read the First time.

[Afzal Khan]

I beg to move, That the clause be read a Second time.

[The Chair]

With this it will be convenient to discuss the following:

New clause 40—Procedures before making and amending Immigration Rules—

“(1) Prior to making any amendments to Immigration Rules or making new Immigration Rules that impact upon persons whose right of free movement is ended by section 1 and schedule 1, the Secretary of State must lay before the House—

(a) an assessment of the impact of the proposed amendments or Rules on modern slavery, and

(b) an assessment of the impact of the proposed amendments or Rules on children.

(2) Prior to any amendments to Immigration Rules or new Rules coming into force that impact upon persons whose right of free movement is ended by section 1 and schedule 1, the Secretary of State must—

(a) lay a draft of the amendments or Rules before the House of Commons

(b) table an amendable motion for debate in respect of the draft amendments or Rules.

(3) Amendments to the motion tabled under subsection (2)(b) may instruct the Secretary of State to change the proposed amendments to the Immigration Rules or new Rules.”

This new clause would mean that changes to the Immigration Rules affecting people whose right of free movement is removed by the Bill were debated in Parliament, and that the Government could be instructed to amend the rules.

New clause 54—Immigration Rules Advisory Committee for relevant Immigration Rules—

“(1) Within 6 months of this Act coming into force, the Secretary of State must establish an Immigration Rules Advisory Committee to consider relevant Immigration Rules.

(2) In this section ‘relevant Immigration Rules’ mean Immigration Rules that apply to persons whose right of free movement is ended by section 1 and schedule 1 of this Act.

(3) The function of the Immigration Rules Advisory Committee shall be to give advice and assistance to the Secretary of State in connection with the discharge of his functions under this Act and in particular in relation to the making of relevant Immigration Rules.

(4) The constitution of the Immigration Rules Advisory Committee shall be set out in regulations.

(5) The Secretary of State shall furnish the Immigration Rules Advisory Committee with such information as the Committee may reasonably require for the proper discharge of its functions.”

--- Later in debate ---

[Afzal Khan]

This new clause requires that any changes to the UK’s immigration rules which affect EEA or Swiss nationals must be made under the super-affirmative procedure. As with many of our amendments, we would prefer the measure to be applied to rules affecting all migrants, but the scope of the Bill requires us to narrow it to EEA and Swiss nationals. The new clauses tabled by the SNP would similarly require a higher level of scrutiny for immigration rule changes, and, as such, we support them.

If the Secretary of State proposes to make changes to the rules, the super-affirmative procedure requires him or her to lay before Parliament a document that explains the proposal and sets it out in draft form. Over the years, immigration rules have become so long, complex and internally inconsistent that they are almost impossible for lawyers to understand, let alone for normal people who try to navigate them without legal aid or appeal rights. The new clause complements our efforts in amendments to clause 4, as well as in amendments 17 and 21 to clause 7 and in new clause 10, to make the immigration system intelligible and hold the Home Office sufficiently accountable for its decisions.

Not everything can be done through primary legislation, but since the Immigration Act 1971 almost everything has been done through secondary legislation. The negative procedure, whereby there is no discussion of the legislation unless parliamentarians kick up a fuss, has become the standard. Immigration rules are made very frequently, often in response to political scandals, without an eye on the long-term effects. Requiring rule changes to be subject to the super-affirmative procedure will give more time for scrutiny and encourage a more measured approach.

[Stuart C. McDonald]

I will speak to new clauses 40 and 54. I know that Members across the Committee will be enthralled by the prospect of an immigration rules advisory committee. Indeed, if new clause 54 is agreed to, I am sure that straight away, the Minister will be open to considering CVs from people who might serve on that committee.

As the shadow Minister said, the new clauses are all about increasing the level of scrutiny. New clause 40 would require an assessment of the impact of any changes to the immigration rules on modern slavery and on children to be laid before Parliament before the changes could be made. Just as significantly, it would give rise to the possibility of MPs actually being able to debate and amend proposed changes to the immigration rules. New clause 54 would put in place an immigration rules advisory committee.

The kernel of these ideas came from a recent report by British Future, which simply points out, as the shadow Minister has done, that changes to immigration rules have been rapid and incredibly complicated. The Home Office has made more than 5,700 changes since 2010, with the rules doubling in length over the same period. Little by way of explanation is provided to MPs when changes are proposed, and even less of scrutiny or debate. In such situations it is near impossible for most MPs to keep track of changes and to fulfil their role of scrutinising the Government’s work.

Social security offers a comparison with our proposal for an immigration rules advisory committee. Like social security laws, immigration rules are constantly changed by secondary legislation. However, there has been a social security advisory committee since as long ago as 1980. It has an independent remit to scrutinise draft secondary legislation on social security, making advice available to both the Government and Parliament. It has 14 members, who come from a wide range of professional backgrounds, and Ministers are usually required to submit regulations in draft to that committee, which may decide to scrutinise them formally. New clause 54 essentially copies the language of the enabling legislation for that committee and applies it to immigration rules.

While I welcome what the Minister and the previous Home Secretary have said about the need to simplify the immigration rules, we need to improve our procedures for scrutinising changes. Our new clauses offer two reasonable and practical proposals for exactly how that could be done.

--- Later in debate ---

[Caroline Nokes]

I am just coming on to the hon. Gentleman’s proposals for a sparkly new committee. New clause 54 would require the Secretary of State to establish an immigration rules advisory committee. I appreciate the concerns behind the new clause. Establishing a new set of immigration rules that will apply to all EEA and Swiss nationals is a big deal, and we need to get it right.

We have made a clear commitment that a wide range of stakeholders, including Parliament, will have an opportunity to contribute their views on the future system before the final policy decisions are made. That will help to ensure that the relevant immigration rules work for the whole United Kingdom. Clearly, Parliament will have the opportunity to scrutinise the rules throughout that process, using the well-established procedures that I have described. I note that we have never before had such an advisory committee for immigration rules. If the new clause were to be added to the Bill, we would not have a similar committee to scrutinise immigration rules that apply to persons who are not covered by the Bill.

As we have said, from 2021, the immigration rules will apply to EU and non-EU migrants alike in a single system that selects people on the basis of skill and talent, as opposed to nationality, so I regard such a committee as unnecessary. I hope that the hon. Member for Cumbernauld, Kilsyth and Kirkintilloch East and the hon. Member for Paisley and Renfrewshire North see that their new clauses are unnecessary, and I invite the hon. Member for Manchester, Gorton to withdraw new clause 9.

[Afzal Khan]

We will not press new clause 9 to a vote, so I beg to ask leave to withdraw the clause.

Clause, by leave, withdrawn.

New Clause 10

Settled status: right to appeal

“(1) When a person whose right of free movement is removed by the provisions of this Act makes an application for settled or pre-settled status, that person may make an appeal to the First-tier Tribunal (Immigration and Asylum Chamber) if—

(a) the application is turned down, or

(b) the person is granted pre-settled status but there is evidence to show that the person should have been granted settled status.

(2) Subsection (1) applies if the United Kingdom leaves the European Union—

(a) following a negotiated withdrawal agreement, or

(b) without a negotiated withdrawal agreement.”—(Afzal Khan.)

Brought up, and read the First time.

[Afzal Khan]

I beg to move, That the clause be read a Second time.

[The Chair]

With this it will be convenient to discuss the following:

New clause 14—Right of appeal against refusal of settled status—

“(1) Any person who—

(a) loses the right of free movement under the provisions of this Act; and

(b) is refused settled status; or

(c) is refused settled status but granted pre-settled status;

has the right of appeal to the Tribunal.

(2) In this section, ‘Tribunal’ means the First-Tier Tribunal.”

New clause 34—Right of appeal—

“(1) The Nationality, Immigration and Asylum Act 2002 is amended in accordance with subsections (2) and (3).

(2) After section 82, insert—

‘82B Right of appeal for EEA and Swiss nationals

(1) This section applies where an EEA or Swiss national has applied for settled or pre-settled status under appendix EU of the Immigration Rules and a decision has been made to refuse the application.

(2) Any person who has had their application for settled or pre-settled status refused may appeal to the Tribunal against that decision.

(3) In subsection (1) above, a refusal of the application includes where an application for settled status is refused but pre-settled status is granted instead.

(4) The lodging of an appeal under subsection (2) against a refusal to grant settled status has no impact on the grant of pre-settled status.’

(3) After section 84(5) insert—

‘(6) An appeal under section 82B may be brought on the grounds that the decision was not in accordance with the Immigration Rules.’”

This new clause would ensure a right of appeal for EEA and Swiss nationals refused status under appendix EU of the Immigration Rules.

[Afzal Khan]

My hon. Friend the Member for Sheffield Central, the shadow Minister, will speak to the new clause.

[Paul Blomfield]

New clause 10 is important because, as the Committee should be aware, the Bill removes the current right, under EU law, to appeal against decisions relating to settled status. The new clause seeks to fill that gap by giving the right to appeal to the immigration and asylum chamber of first-tier tribunal to those whose application is rejected and those who have been granted pre-settled status but there is evidence to show that they should have been granted settled status.

As discussed during the oral evidence sessions, as it stands the only right to appeal consists of an administrative review at a cost of £80 or a judicial review at a significantly greater cost and with a drawn-out, time-consuming process. Ms Blackstock from Justice told us that it

“seems to be the most bureaucratic and inappropriate method for what is…potentially a simple grey area that requires a simple review.”––[Official Report, Immigration and Social Security Co-ordination (EU Withdrawal) Public Bill Committee, 12 February 2019; c. 62, Q162.]

This is a problematic issue.

We also heard from Professor Smismans, who represents the3million, that there had been “considerable problems” with past administrative reviews by the Home Office. I am sure the Minister is aware of that. An administrative review may be fine as a first access point, but it is not sufficient on its own.

The Government clearly recognise the need to make the right of appeal available, as they have agreed that with the EU as part of the draft withdrawal agreement. That right exists under the withdrawal agreement that the Government have signed up to; UK courts and tribunals are authorised to refer cases on citizens’ rights to the European Court of Justice within eight years of the end of the transition period.

The withdrawal agreement also provides for an independent monitoring body to conduct inquiries into alleged breaches of part 2 of the withdrawal agreement. That body would also be able to receive complaints from EU nationals and bring legal action on their behalf.

So far so good, but both those mechanisms fall away in a no-deal situation. Following the delayed publication in December of the Government’s paper on citizens’ rights in the event of no deal, my hon. Friend the Member for Manchester, Gorton and I wrote to the Minister and the Under-Secretary of State for Exiting the European Union, the hon. Member for Worcester (Mr Walker) with our concerns. In reply, they stated their view that it is fair in a no-deal scenario to provide the remedies generally available to non-EU citizens refused leave to remain in the UK in other parts of the immigration system.

I ask the Minister: how is that fair? In the event of no deal, the Government are proposing to reduce the time that people have to apply for settled status. The process of registering 3 million people is already a challenge, and some people believe it might be beyond the Home Office. With less time comes greater risk of mistakes, so why are the Government reducing the means of appeal?

We are talking about a finite number of people who have already been subject to two and a half years of uncertainty. It is worth remembering that about 100 EEA citizens were erroneously threatened with deportation by the Home Office in 2017. Is it really fair to anybody that we are expected to trust the Home Office to mark its own homework? An accessible right of appeal under any terms on which we exit the European Union would provide much-needed reassurance to EU nationals.

--- Later in debate ---

[Caroline Nokes]

I was going to come on to talk about administrative review, which is available in the event of deal or no deal to those who are refused leave under the scheme on eligibility grounds. Under the settlement scheme, eligibility is focused primarily on how long an individual has been in the UK; it is not about demonstrating that individuals have been exercising free movement rights but simply about proving identity and that they are here. Administrative review will be able to correct any errors that might be made in calculating the time period, if necessary by considering new evidence. The hon. Gentleman will also be aware that application under the EU settlement scheme is free—I welcome the change that the Prime Minister made by removing the fee. It would be open to any individual simply to reapply, rather than go through an appeal or administrative review process, because there is no charge.

When an applicant is refused on suitability grounds, they will not have a right to administrative review. Refusals on suitability grounds will be made, in particular, if there is evidence of serious criminality. However, where people are refused on criminality grounds and subject to deportation, they can make a human rights or protection claim against their removal; they will have a right of appeal under existing legislation if that claim is refused. In addition, applicants who are refused leave under the settlement scheme have the right to apply for judicial review of the refusal, as we have heard. Such remedies exist now for those refused under the EU settlement scheme.

We are committed to protecting EU citizens, and I hope that what I have said provides reassurance to hon. Members that adequate remedies are already available to those refused leave under the settlement scheme.

[Afzal Khan]

Does the Minister not accept that judicial review or an internal review is no match for the right of appeal? Judicial review is narrow in how it is done, and internal review is marking one’s own homework.

[Caroline Nokes]

The hon. Gentleman has referred again to judicial review. I absolutely accept that it can be time consuming, and I recognise Members’ concerns about appeal rights in the event of no deal, but I sincerely hope that we will not be in that position and that we will be able to introduce appeal rights under the withdrawal Bill. However, it would be confusing to have different provisions on appeal rights in different legislation, which is why I think that the amendments are premature. Nevertheless, hon. Members in Committee and those outside this place, including at the evidence sessions, have made a number of points about further reassurance being required, so I will certainly reflect on that to see what more we can do.

--- Later in debate ---

[Afzal Khan]

The question was not just about judicial review being time consuming, which it is, but about the cost and how narrow it is in law.

[Caroline Nokes]

The point that I have to reflect back every single time is that the Government are working incredibly hard to ensure that we secure a deal with the EU. That is obviously the best way to avoid that scenario.

[Paul Blomfield]

I acknowledge that the Minister’s wish to reflect on some of the issues raised is helpful, but there are still fundamental matters on which we have had insufficient reassurance.

[Afzal Khan]

I will press the new clause to a vote.

Question put, That the clause be read a Second time.

--- Later in debate ---

[Afzal Khan]

I beg to move, That the clause be read a Second time.

The amendment would ensure that the hostile environment was not applied to EU citizens until 3 million people had been registered, or until the end of the grace period—30 June 2021—whichever was later. The Government have made it clear that their intention is for EEA nationals to stay in the UK after we leave the EU, and we have serious concerns about their ability to register 3 million EU citizens in time for the end of the transition period, and even more so if there is no deal and the deadline is sooner.

Even where we have a declarative settled status scheme—Labour’s preference, as set out in new clause 15—it is vital that enough EU citizens have proof of their status in the UK before it is tested at every turn through the hostile environment. Under the hostile environment, a person’s ability to prove their right to be here is almost as important as having the right itself.

As discussed under amendment 23, the Government have set no targets for the numbers of people they intend to register for settled status before the deadline. The 3 million would seem to be the bare minimum, and I would welcome the Minister setting a more ambitious target, to which we can hold her Department when the time comes.

The issue of data gaps was raised by Madeleine Sumption at the Home Affairs Committee, and it is reflected in the Migration Observatory’s report, “Measuring Success”. Based on current statistics, it will be difficult to work out how many people miss out on settled status unless the numbers are very big. We do not have the precise figures of EU citizens living in the UK who plan to stay, so it is possible that tens of thousands will miss out on settled status without our knowing. Those most likely to miss out and fall through the cracks will probably be the most vulnerable.

The Migration Observatory’s report sets out steps that the Government could take to better evaluate the success of the settled status scheme and to estimate how many people have not registered, but, to my knowledge, they have not taken any of them. Windrush demonstrated the catastrophic and truly life-threatening consequences of the hostile environment.

This debate is all the more urgent in the light of Friday’s High Court ruling that the Government’s right to rent scheme causes racial discrimination, in breach of human rights. In a damning verdict, the judge found that the scheme causes landlords to discriminate where they otherwise would not. This is not the landlord’s fault. This proven discrimination is a direct result of Government policy, which goes straight to the Prime Minister, who introduced and championed the hostile environment.

--- Later in debate ---

[Caroline Nokes]

I am minded, given the High Court judgment of last week, to be careful what I say about the issue, and I hope that the hon. Gentleman will forgive me if I just go on to speak a little about the evaluation of October 2015, which included 550 responses to online surveys, 12 focus groups, 36 one-on-one interviews and a mystery shopping exercise involving 332 encounters. That evaluation found that there was no systemic discrimination on the basis of race. The law was, and remains, absolutely clear that discriminatory treatment on the part of anyone carrying out the checks is unlawful.

Despite that, as hon. Members have mentioned, on Friday last week the checks were declared incompatible with the European convention on human rights. We disagree with the finding and are appealing the judgment. We remain committed to the principle that if someone has no right to be in this country they should not be renting property. This country has a proud tradition of upholding and promoting human rights, and we have set the standard internationally for the strength of our legal protections against discrimination. The High Court decision is not something we should take lightly.

[Afzal Khan]

We hear what the Minister is saying about people who have no right to be here, but the fact is that people who have a right to be here can become a victim of the hostile environment. That is what happened with Windrush.

[Caroline Nokes]

As I was saying, the High Court decision is not something we take lightly, but we have been granted permission to appeal all aspects of the judgment. In the meantime, the provisions passed by this House in 2014 remain in force. Landlords and letting agents are still expected to conduct right-to-rent checks, as required in legislation, and they are still expected not to discriminate against anyone on the basis of their colour or where they come from.

As my right hon. Friend the Home Secretary has previously made clear, we are looking at options for evaluating the operation of the scheme, adding significantly to the evaluation that has previously been done. The Home Secretary has written to Wendy Williams to draw her attention to the High Court’s findings. The lessons learned review is identifying the key legislative, policy and operational failures that resulted in members of the Windrush generation becoming entangled in measures designed for illegal immigrants.

I will continue to chair meetings of the right-to-rent consultative panel with Lord Best, to discuss this and other matters relating to the operation of the scheme. I reiterate my steadfast commitment to tackling discrimination in all its forms, and I am committed to building an immigration system that provides control, but is also fair, humane and fully compliant with the law. I hope that in the light of these points the hon. Gentleman will withdraw his new clause.

[Afzal Khan]

I thank the Minister for what has been said this morning. However, we take the position that the hostile environment must be dismantled and we do not wish to see EU citizens going through what the Windrush generation has gone through.

Question put, That the clause be read a Second time.

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

Afzal Khan Excerpts

Thursday 28th February 2019 Public Bill Committees

[Stuart C. McDonald]

That is all fair enough but, ultimately, the point remains that all of this is incredibly difficult. Nationality and immigration law are complicated, and the settled status scheme, although it is straightforward in principle, has a number of complexities. Legal aid is essential.

We are talking about fundamental issues to do with human rights and citizenship—the hon. Member for Torfaen talked about Windrush earlier—and all the factors together make legal aid imperative. I am glad that we still have good legal aid coverage for immigration matters in Scotland, and I very much think that that should be the case throughout the United Kingdom.

[Afzal Khan (Manchester, Gorton) (Lab)]

Briefly, in the light of the two earlier speakers declaring their interests, I declare that I am a solicitor and that I practised immigration law, although I do not do so currently.

[The Minister for Immigration (Caroline Nokes)]

It is a pleasure to serve under your chairmanship, Sir David. I thank the Opposition Members for their contribution to this debate. I put the name of the hon. Member for Torfaen at the top of this sheet of paper, but then I had to add all the other hon. Members because of their detailed and learned comments on legal aid.

Amendment 21 and new clause 36 are grouped together because, in essence, they cover the same ground. I recognise the issues that have been raised by hon. Members. The EU settlement scheme has been designed to be streamlined and user-friendly, and the majority of applicants will be able to apply without the need for general advice from a lawyer or advice on rights to enter or remain required as a result of the Bill. Indeed, feedback from the testing phases of the EU settlement scheme showed that most applicants found the application easy to complete.

For the most part, feedback from applicants in the vulnerable cohort has been positive, noting the speed of decisions in many cases and that it was easy to provide evidence of residence. Supporting vulnerable individuals to obtain UK immigration status is a core element of the delivery of the scheme, and we recognise that we need to reach out and support a wide range of vulnerable groups whose needs will vary, including the elderly, those who cannot access or are not confident with technology, and of course non-English speakers.

We are therefore putting in place safeguards to ensure that the EU settlement scheme is accessible and capable of handling vulnerable individuals with flexibility and care. That will include a range of direct support offered by the Home Office, such as assisted digital support and indirect support through third parties. As a practical example, we are providing grant funding of up to £9 million for voluntary and community organisations throughout the UK to support EU citizens who might need additional help when applying for their immigration status through the EU settlement scheme. The grant funding will help those organisations to inform vulnerable individuals about the need to apply for status and to support them in completing their applications under the scheme.

As the Committee heard at the oral evidence sessions, voluntary and community organisations such as the Children’s Society have been well engaged in the development of the settlement scheme. We are also working to ensure that local authorities have all the support that they need to ensure that looked-after children in their care will receive leave to remain under the EU settlement scheme. Caseworkers will provide support to ensure that applications are not turned down because of simple errors or omissions, and a principle of evidential flexibility will apply, enabling caseworkers to exercise discretion in favour of the applicant where appropriate. In short, the process has been designed with users in mind.

As an additional safeguard, legal aid will be available to some particularly vulnerable individuals. The Government have always been clear that publicly funded immigration legal advice is available for individuals identified as potential victims of human trafficking, modern slavery or domestic violence. We will also introduce legislation shortly to bring immigration matters for unaccompanied and separated migrant children into the scope of legal aid, meaning that that group will get support in securing their immigration rights.

In addition to that, legal aid may be available through the exceptional case funding scheme where the relevant criteria are met. As my right hon. Friend the Secretary of State for Justice announced in the House on 7 February, the Government will bring forward proposals to simplify the exceptional case funding application process and to improve the timeliness of funding determinations to ensure that those who need legal aid funding can access it when they need it.

The EU settlement scheme has been specifically designed to ensure that individuals can apply for settled status without the need for a lawyer. The Government have also committed to providing a range of safeguards to ensure that vulnerable individuals receive the assistance they need in securing their immigration rights. These safeguards will of course apply to vulnerable EEA and Swiss nationals. For those reasons, I hope that the hon. Member for Manchester, Gorton will withdraw amendment 21.

[Afzal Khan]

I thank the Minister for her statement, but we are not satisfied. We will put the amendment to a vote.

Question put, That the amendment be made.

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[Afzal Khan]

I beg to move amendment 32, in clause 7, page 5, line 37, at end insert—

“(7A) Section 1 of this Act cannot come into force until the Secretary of State has commissioned an independent review to examine whether the UK’s existing immigration legislation, and any provisions or rules issued under existing legislation, require amending to deal with the ending of freedom of movement under the provisions of this Act.

(7B) The review under subsection 1 must consider, but is not limited to —

(a) an equality impact assessment evaluating whether any individuals subject to the Immigration Act 1971 are discriminated against on the basis of any of the protected characteristics defined in the Equality Act 2010;

(b) an assessment of whether the Immigration Act 1971 needs amending to ensure the human rights of persons who have their freedom of movement removed under the provisions of this Act are protected;

(c) whether sections 20 to 47 of the Immigration Act 2014, sections 34 to 45 of the Immigration Act 2016, and sections 15 to 25 of the Immigration, Asylum and Nationality Act 2006 require amending;

(d) whether schedule 2 of the Data Protection Act 2018 requires amending.

(7C) The review under subsection 1 must be laid before both Houses of Parliament.”.

[The Chair]

With this it will be convenient to discuss the following:

Amendment 17, in clause 7, page 5, line 39, at end insert—

“(8A) The Secretary of State must not issue any regulations under subsection 8 above until the Secretary of State has implemented any recommendations contained in the Law Commission’s review of the UK’s Immigration Rules which relate to or will relate to persons who, under the provisions of the Act, will lose their right of free movement.”.

Amendment 38, in clause 7, page 5, line 39, at end insert—

“(8A) Regulations under subsection (8) may not be made until the Secretary of State has published a review of section 3 of the Immigration Act 1971, examining its impact on the human rights of people whose right of free movement is ended by section 1 and schedule 1 of this Act.”.

Amendment 39, in clause 7, page 5, line 39, at end insert—

“(8A) Regulations under subsection (8) may not be made until the Government has repealed paragraph 4 of schedule 2 of the Data Protection Act 2018 in so far as it affects people whose right of free movement is ended by section 1 and schedule 1 of this Act.”.

[Afzal Khan]

I will speak to amendments 17 and 32, which are in my name. I support amendments 38 and 39, which have been tabled by the hon. Member for Cumbernauld, Kilsyth and Kirkintilloch East.

On amendment 32, the Bill and the White Paper do not address the many deep-seated problems in our broken immigration system, but instead subject a further 3 million people to it. The Windrush crisis laid bare the extent to which the hostile environment policy impacts on human rights; British citizens were detained and deported, and the Government have acknowledged that that was utterly wrong. I will return to the need for a full review of all Windrush cases, before the Bill is enacted, when we debate amendment 16.

We have heard the opinions of several experts on the danger of a repeat of Windrush for EU citizens, and we need a two-pronged approach to avoid that. First, we must ensure that the rights of EU citizens are enshrined in primary legislation, and that there is no unnecessary cut-off for applications for settled status—an argument I will elaborate on when we discuss the new clauses. Secondly, we must address the root cause of the Windrush crisis: the hostile environment policy.

As the spokesperson for Liberty set out in our evidence session, the impact of the hostile environment goes beyond even the Windrush scandal; it reverberates throughout people’s lives. Children are afraid to go to school, sick people are afraid to go to hospital and victims of serious crime are afraid to report them to the police. Our public services have been co-opted, with doctors, teachers and landlords turned into border guards.

The hostile environment does not only affect migrants. A report by the Joint Council for the Welfare of Immigrants shows that inquiries from British black and minority ethnic tenants without a passport were ignored or turned down by 58% of landlords in a mystery shopping exercise. I need not remind the Committee that a large number of BME British citizens will be caught in this policy. A number of independent bodies have recommended that the Government review the hostile environment. The Independent Chief Inspector of Borders and Immigration found:

“Concerns about right to rent’s impact on racial and other forms of discrimination by landlords, exploitation of migrants and associated criminality, and homelessness, have been raised, repeatedly, by the Joint Council for the Welfare of Immigrants (JCWI), Crisis, Migrants’ Rights Network and others”,

but the Government did not complete an evaluation of the pilot before rolling it out, nor did they attempt to measure its impact once it was fully rolled out. The independent chief inspector found that overall,

“the RtR scheme had yet to demonstrate its worth as a tool to encourage immigration compliance.”

Internally, the Home Office has failed to co-ordinate, maximise or even effectively measure the use of the scheme. Externally, meanwhile, the Home Office is doing little to address stakeholders’ concerns. The National Audit Office found that the Government failed to fulfil their duty of care when introducing the hostile environment. Its report said:

“In its implementation of the policy with few checks and balances and targets for enforcement action, we do not consider, once again, that the Department adequately prioritised the protection of those who suffered distress and damage through being wrongly penalised, and to whom they owed a duty of care. Instead it operated a target-driven environment for its enforcement teams.”

The Government have recognised the need for an extensive review. After one of my parliamentary questions exposed the scandal of the Home Office’s requiring people who applied for visas to supply DNA evidence, the Home Secretary committed to a wide-ranging review of those “structures and processes” in the Home Office,

“to ensure they can deliver a system in a way which is fair and humane.”

That was back in October 2018, and we have heard nothing more about it since then. The Labour party is clear that we cannot have a “fair and humane” immigration system that respects human rights until we have repealed the hostile environment in its entirety. The Windrush crisis was caused by systematic problems within the Home Office, and it will take root and branch reform to return us to an immigration system that respects human rights.

I turn briefly to the question of data protection, which is related but warrants special consideration. The Data Protection Act 2018 allows an entity that processes data for immigration control purposes to set aside a person’s data protection rights in a broad range of circumstances. As I believe was said during the debate on that Bill, data protection rights help us to hold the Home Office to account. The White Paper indicates that the Government will be using data sharing more and more to enforce the hostile environment.

As Liberty set out, it is concerned that

“the Home Office is really quite a poor data controller, and yet automated data processing is increasingly going to be the linchpin of implementing the hostile environment.”––[Official Report, Immigration and Social Security Co-ordination (EU Withdrawal) Public Bill Committee, 12 February 2019; c. 60, Q159.]

In that context, it is essential that people have some form of redress for data errors, and data protection rights are crucial. We believe that the hostile environment should be repealed, but if it is to be continued, we must at least have effective redress for errors.

The purpose of amendment 17 is to require the Secretary of State to implement the recommendations of the Law Commission’s review of UK immigration rules. In her opening remarks on this Bill, the Minister mentioned the Law Commission, and I welcome that; I hope she will commit to adopting the measures it recommends before the Government make extensive changes to immigration rules as a consequence of this Bill. In that case, we would not press this amendment to a vote.

Many changes to immigration rules have been made in a piecemeal way, resulting in immigration laws being practically incomprehensible. The JCWI pointed out that Supreme Court judges, Court of Appeal judges, immigration experts and immigration lawyers have all said in public that it is almost impossible for anyone to navigate, let alone people who are expected to do so without necessarily having perfect English or legal aid. The Law Commission points out that, on 31 December 2018, the rules totalled 1,133 and are poorly drafted, which the Government recognised by commissioning the Law Commission review. It makes sense to implement the Law Commission’s recommendations and clean up the statute book before making a whole raft of changes for EEA citizens.

The Law Commission’s project of simplifying the immigration rules officially started on 13 December 2017. It held pre-consultation meetings with key stakeholders and other experts, and with the Home Office. The consultation paper was published on 21 January 2019 and the consultation period is open until 26 April 2019. Recommendations will be delivered in a final report “later in 2019”.

Changes that the Law Commission is considering as part of its review include: a less prescriptive approach to the rules; reforming the organisation and restructuring the immigration rules; removing overlapping provisions and resolving inconsistencies; improving the drafting style; and improving the way that immigration rules are updated. We support those changes, and we believe that it makes most sense for them to be incorporated before our immigration rules are overhauled as a consequence of enacting the Bill.

[Stuart C. McDonald]

I will speak to amendments 38 and 39, tabled in my name and that of my hon. Friend the Member for Paisley and Renfrewshire North, which are essentially subsections of the broader amendments that the shadow Minister spoke to. I absolutely endorse his comments, so I will be very brief indeed.

Essentially, the development of immigration policy has not been evidence-based or rights-based. My amendments pose a couple of questions. First, before we set out to apply the immigration rules to many thousands more people, why do we not review them and assess their impact on human rights? Secondly, my amendments ask us to revisit a pretty scandalous immigration exemption inserted into the recent Data Protection Act 2018.

On the first point, the Government tend to argue in their defence that the statutory duties that are in place are sufficient. However, we unfortunately all too often see statutory duties not properly discharged by the Home Office. For example, we heard in an earlier debate about the duty under section 55 of the Borders, Citizenship and Immigration Act 2009. Justice McCloskey said in 2016:

“As in so many cases involving children, there is no evidence that the statutory duty imposed by section 55(2) to have regard to the Secretary of State’s statutory guidance was discharged. I readily infer that it was not. This, sadly, seems to be the rule rather than the exception in cases of this kind.”

Rather than leaving it to statutory duties and guidelines, we want a proper assessment, to make sure that those duties are complied with, and to see how they are complied with.

On the second point, that immigration exemption gives the Home Office sweeping powers to excuse itself or others from fundamental data protections, which are vital to ensuring that people are not subjected to wrong immigration decisions, and wrongly exercised functions and powers, as befell so many members of the Windrush generation. That exemption absolutely ought to be removed.

In particular, the sharing of migrants’ data between public services and the Home Office, and the erosion of migrants’ data protection rights, are some of the most controversial aspects of the hostile environment, turning traditionally safe spaces, such as hospitals and schools, into immigration surveillance services. The policy of sharing NHS patient data with the Home Office eroded the patient confidentiality rights of migrant patients, causing outrage among doctors, royal medical colleges and the British Medical Association. In the light of evidence that data sharing caused migrants to avoid healthcare services and presented a public health risk, the policy was suspended. We need to go further than that and row back on the immigration exemption altogether, which is why I ask hon. Members to support amendment 39.

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[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.

[Afzal Khan]

I thank the Minister for her assessment, but I am not totally satisfied, so I wish to press the amendment to a Division.

Question put, That the amendment be made.

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The UK Government have taken many laudable steps to promote gender equality in other areas, including the introduction of mandatory gender pay gap reporting. We must not allow that progress to be undermined through ill thought-through measures that will lead to significant numbers of women being denied the opportunity to come to the UK or to join their families here, despite the robust evidence of the barriers that women face in taking up full-time employment and achieving the same level of remuneration as men. For that reason, my amendment calls for a full gender impact assessment of the Act, and for that assessment to be laid before the House in a report within six months of its passing.

[Afzal Khan]

I thank my hon. Friend for tabling the amendment and I heartily support all that she has said about it. Last Tuesday, I also gave reasons why I feel that the Bill disproportionately affects women. Therefore, we will support the amendment.

[Caroline Nokes]

I, too, thank the hon. Member for Stretford and Urmston for tabling the amendment, because it gives me the opportunity to confirm that gender impact and gender equality are important issues that must be taken into account across Government policy. Of course, that applies to all protected characteristics under the Equality Act 2010.

The UK has a long-standing tradition of ensuring that our rights and liberties are protected domestically and of fulfilling our international human rights obligations. The Government are committed to complying with their public sector equality duty under section 149 of the 2010 Act. Furthermore, the Government have been clear that all protections in and under the Equality Acts 2010 and 2006, and the equivalent legislation in Northern Ireland, will continue to apply after we leave the EU. We will not renege on our strong equalities and workers’ rights commitments.

As such, we published two policy equality statements alongside the introduction of the Bill, one on immigration and one on the social security aspects of the Bill. Both of those considered the potential gender impacts of the Bill. However, as the Committee is aware, the Bill is a framework Bill, and its core focus is to end free movement. As set out in the policy equality statement on the immigration measures in the Bill, the resident population of EU nationals is estimated to be roughly half male and half female, as the hon. Lady said. As a consequence, we do not think that ending free movement will discriminate on the grounds of sex, and there is nothing further to suggest that it will have a particular impact based on gender. However, we cannot predict the volume and pattern of migration post EU exit, because the future arrangements that will replace free movement have not yet been finalised.

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[Afzal Khan]

I beg to move amendment 16, in clause 7, page 5, line 39, at end insert—

“(8A) Regulations under subsection (8) above may not be made until—

(a) the Secretary of State has completed a review of all cases of deportation, detention, or refusal of status to individuals who entered the United Kingdom before 1973, and the children and descendants of those individuals; and

(b) the Secretary of State has considered the findings of that review and implemented any safeguards deemed necessary, following a public consultation, to ensure that those who lose their right of freedom of movement under the provisions of this Act are protected from any wrongful detention, deportation or denial of legal rights.”

[The Chair]

With this it will be convenient to discuss amendment 23, in clause 7, page 5, line 39, at end insert—

“(8A) Regulations under subsections (7) and (8) relating to the coming into force of section 1 or section 5 may not be made until the number of people registered for settled status in the United Kingdom reaches 3 million.”

This amendment would prevent the Bill from coming into force until the number of people registered for settled status reaches 3 million.

[Afzal Khan]

Amendment 16 will prevent schedule 1 from coming into force until the Home Office has completed a full review of how enforcement has been applied following the Windrush scandal.

The Windrush scandal exposed systematic issues in the Government. A year on, we still do not know how many people have been detained or deported, or have even died as a result of the hostile environment. The measures that the Government have taken so far to fix the Windrush scandal have been unsatisfactory.

The National Audit Office has criticised the narrow scope of the Government’s review thus far, saying that the Home Office has shown a surprising

“lack of curiosity about individuals who may have been affected, and who are not of Caribbean heritage, on the basis that this would be a ‘disproportionate effort’.”

When the question is whether someone’s fundamental rights have been grossly violated, no effort is disproportionate in identifying and compensating victims.

This situation comes about after the Government showed a lack of concern about the potential impact of the hostile environment when it was introduced, despite repeated warnings from organisations and Opposition Members.

The compensation scheme has yet to be set up. The Government only introduced an emergency hardship fund after months of lobbying by Labour, and shockingly, it only helped one person in 2018. Just this month, there was widespread outrage at the Government’s decision to restart deportation flights to Jamaica, after they were suspended at the height of the Windrush scandal. The Government have not yet shown that they have learned the lessons of Windrush. The lessons learned review has not even reported yet, so those flights were entirely premature.

Amendment 16 would redress the Government’s failure to fulfil their duty of care to members of the Windrush generation, and would ensure that 3 million more EU citizens were not subjected to an already broken immigration system. As it is, the Bill will subject millions more people to a detention and deportation system that we know is broken, as outlined by Liberty in our evidence session. It said that

“up to 26,000 people per year could be liable to detention as EU nationals come under domestic immigration law. At the same time, a parliamentary question revealed that there has been no assessment of the impact of the Bill on the detention estate.”––[Official Report, Immigration and Social Security Co-ordination (EU Withdrawal) Public Bill Committee, 12 February 2019; c. 55, Q147.]

I entirely support the point that Amnesty made when it said:

“The dysfunction of the system can only be expected to get worse...given that it will be dealing with a much larger body of people—people already living here, and the European nationals who make future applications that the system will have to deal with.”––[Official Report, Immigration and Social Security Co-ordination (EU Withdrawal) Public Bill Committee, 14 February 2019; c. 88, Q221.]

Another issue that we heard a lot about during our evidence sessions was the threat of a repeat of Windrush for EU citizens. Once we have fixed problems with our current detention and deportation systems, we must ensure that we are not creating new systematic issues that will cause a repeat of the Windrush tragedy. As long as the hostile environment exists, it is imperative that people have documentation to prove their right to be in the UK.

The Government have set up the settled status scheme, and I am glad that they have started registering people, but we heard during the evidence sessions that there are already some problems with it, and that is before we get to the difficult cases of people who do not know that they need to register, do not have access to a phone or computer, or do not speak English well enough to complete the application and understand their rights and obligations under the scheme. Those EEA nationals who are unable to obtain status are likely to be the most vulnerable and marginalised, such as victims of trafficking or domestic violence, and children in care.

The Government have no clear plans at the moment to demonstrate that they have successfully registered all eligible EEA nationals for settled status by the end of the implementation period, nor have they put any plans in place to attempt to measure the extent of their success in doing so, nor have they set any targets for numbers to be registered. If the Minister disagrees on this point, I would be happy for her to tell the Committee what her target is for registering EEA nationals for settled status.

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[Caroline Nokes]

It is still the Home Office’s position that we regard that as an arbitrary figure. We believe that a deadline that is set as a date is much more easily understood by individuals.

We are running an extensive communications campaign to ensure that people are aware of the need to apply. We are using all available channels to reach our audience, and last year targeted online advertising alone reached more than 2 million people. Our communications activity will be even more visible in the coming months, and we will shortly launch a wide-ranging marketing campaign that will encourage EU citizens to apply when the scheme is fully open. Nobody will be left behind, however, and we are working in partnership with vulnerable group representatives to ensure that we reach everyone. We expect the large majority of EEA nationals to have been granted status by the deadline, but if a person has good reasons for missing the deadline, we will be able to protect their status and enable them to apply afterwards.

Secondly, by requiring 3 million EU citizens to be granted settled status before the Bill can come into force and lay the ground for the future immigration system, we are presupposing that all resident EU citizens will receive indefinite leave to remain, which is what settled status refers to. That does not take into account the fact that some resident EU citizens may not need to apply for settled status. Some may want to leave the UK before the deadline; some will have arrived pre-1973 and already have indefinite leave to remain; and some may want to apply for British citizenship instead.

A significant proportion of EEA nationals who are eligible to apply under the settlement scheme will not have been continuously resident in the UK for five years, so they will not be entitled to settled status. They will be issued with pre-settled status, which gives them limited leave to remain, rather than indefinite leave. Some may then leave the UK without staying to complete the five years continuous residence required for a grant of settled status.

The date on which free movement could be repealed, or retained social security co-ordination legislation amended, would therefore be highly uncertain and operationally unworkable as a result of the amendment. The decision about whether free movement ended would be left solely in the hands of those EEA nationals. To prevent free movement from coming to an end through the Bill, they could simply refuse to apply under the EU settlement scheme, knowing that, as a consequence, free movement would not end.

That would be the antithesis of taking back control. It would put the future immigration system in the hands not of the Government or the British people, but of EU nationals who had already exercised their free movement rights and whose rights were protected, but who could prevent us from ending free movement and delivering on the outcome of the referendum.

Finally, it makes no sense to restrict the commencement of the social security co-ordination provisions in clause 5 based on the number of people who are granted settled status. Rights under the social security co-ordination regulations—for example, the right to aggregate to meet domestic entitlement for specific benefits—are not connected to the grant of leave under the EU settlement scheme. I therefore ask the hon. Member for Manchester, Gorton to withdraw his amendment.

[Afzal Khan]

I thank the Minister for her statement. I am minded to press amendment 16 to a vote, but not amendment 23.

Question put, That the amendment be made.

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[Stuart C. McDonald]

We could do what we did previously, which was to recover the costs after the event. However, as I say, I have tabled these amendments to spark debate. At the end of the day, if it is a choice between risking people’s lives or even causing death, and risking losing out on certain funds after the event, the second of those is the lesser evil. However, it is a difficult issue; I do not have all the answers as to how we should approach it. As I say, that is why the new clauses and the amendment have been tabled.

[Afzal Khan]

What would be said if there was a contagious disease and people were not coming to get the help that they needed?

[Stuart C. McDonald]

The hon. Gentleman makes an absolutely valid point.

I turn to amendment 37, which would prevent the Government from bringing into force those parts of the Bill that subject EEA nationals to the domestic immigration system until EEA and Swiss nationals with immigration permission are exempted from the NHS’s overseas visitors charges. This amendment would mean that all EU migrants with a visa, including temporary workers on short-term visas, are able to receive NHS services free at the point of care. That reflects the current situation of EU nationals living and working in the UK.

The White Paper indicates that EU migrants on short-term visas of 12 months will have no right to healthcare beyond emergency care, and skilled workers and their dependants will be required to pay the immigration health surcharge when making an immigration application to enter or remain in the UK. Good preventive healthcare plays a central role in maintaining a fit and healthy workforce, and the policy to exclude people on short-term visas from all healthcare beyond emergency care establishes a worrying precedent in excluding from NHS services migrants who are legally living and working in the UK.

Those on short-term visas are likely to be in lower-paid jobs and unable to pay for healthcare out of their own pockets. Requiring EU migrants on skilled worker visas and their dependants to pay the immigration health surcharge is unfair and will be cost-prohibitive for some. Payment of the surcharge, which is currently set at £400 per person per year with a discounted rate for students of £300 per year, must be made at the same time as an immigration application, and it has to cover the total cost for the duration of the visa and for all the people named on the application. A person applying for a two-and-a-half-year visa will incur a surcharge of £1,000, on top of any other immigration fees, and a family of four would be required to pay £8,100 for a visa for the same period.

For those on low incomes, the health surcharge will be cost-prohibitive. We are particularly concerned about the impact that the surcharge will have on EU migrants living in the UK when they come to renew their visa, and about the fact that large health surcharge payments will prevent those on low incomes from being able to renew their visa, causing them to lose their lawful stay in the UK. It is also of note that EU migrants who are employed—for example, those on short-term or skilled visas—will be contributing to the NHS through tax and national insurance payments and that, by being required to pay the health surcharge, they will in effect be being charged twice for healthcare.

For those reasons, I have also tabled new clause 42, which would remove the applicability of the health surcharge. The surcharge has doubled this year to what I regard as an unacceptably high level.

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[Afzal Khan]

We support the proposals. Overall, the sweeping provisions in clause 4(5) provide limitless scope for the Government to change fees and charges. The immigration health surcharge was already doubled from £200 to £400 a year by the Immigration (Health Charge) (Amendment) Order 2018, which Labour voted against. There is nothing to stop the Government doubling it again. The whole idea of an immigration health surcharge is pretty dubious, because the migrants who are forced to pay the charges are already paying large sums of money in tax and national insurance contributions. Some of them may even be working in the NHS, so they are paying a double tax for a service that they are helping to deliver.

[Caroline Nokes]

I am grateful to the hon. Members for Cumbernauld, Kilsyth and Kirkintilloch East and for Paisley and Renfrewshire North for tabling these amendments on migrants’ access to healthcare in the United Kingdom. I am also grateful to the hon. Member for Wolverhampton South West for tabling her new clause. Given their similar effects, I will consider them together.

The Government have been very clear in everything we have said since the referendum that, although the United Kingdom will be leaving the European Union, we are certainly not leaving Europe. Our relations with the European Union and the whole of the EEA will continue to be close and cordial. As part of that, immigration from the EEA will certainly continue. We want EEA citizens, who have contributed so much to our society, to continue living and working in the United Kingdom. While they are here, they will of course need access to healthcare. We are fortunate in this country to have a world-class health system, thanks to the NHS. The proposals, in different ways, would exempt EEA and Swiss citizens from the requirement to pay for healthcare in the UK. However, they are unnecessary.

Amendment 37 and new clause 12 are also technically deficient, because they do not reflect the nature of devolved health legislation. Entitlement to free-of-charge NHS care is not, and should not be, based on nationality. It is based on a concept of ordinary residence in the United Kingdom. For EEA nationals, that means living in the UK on a

“lawful…properly settled basis for the time being.”

I thank hon. Members for their comments on specific proposals, and I will make a number of points. Operating fair and proportionate controls on access to the NHS is not about outsourcing immigration control; it is about protecting a vital taxpayer-funded service from potential misuse. The Department of Health and Social Care’s policy of up-front NHS charging for non-urgent treatment for overseas visitors was upheld by the courts in a judicial review last year. Treatment for specified public health conditions, such as the infectious diseases mentioned earlier, is not subject to overseas visitor charges.

The hon. Member for Wolverhampton South West asked whether it was fair that EEA nationals should pay the health charge, given that they would pay for the NHS via taxes and national insurance contributions. Whether EEA nationals pay the health charge following the introduction of the new skills-based immigration may depend on the outcome of our negotiations with the EU about our future relationship. The health charge currently applies only to non-EEA temporary migrants. Although some non-EEA nationals will pay tax and national insurance contributions, they will not have made the same financial contribution to the NHS that most UK nationals and permanent residents have made or will continue to make over the course of their working lives. It is therefore fair to require them to make an up-front and proportionate contribution to the NHS.

When we debated this in Committee some months ago, the issue of the level of contribution was raised, and it has been again this afternoon. The Department of Health and Social Care undertook a careful study with NHS England of the NHS resources that temporary migrants to this country generally used over the course of a year. It came out in the region of £470 per individual. I hope that hon. Members will note that the immigration health charge is set below that level at £400 per person, or the reduced rate of £300 per year for students and those on youth mobility schemes.

The hon. Member for Stretford and Urmston raised maternity care. The Department of Health and Social Care is responsible for guidance on overseas visitor charges in England. Maternity care is always urgent and must never be withheld pending payment. That is clear in the Department of Health and Social Care’s guidance. However, charges are applied to protect maternity services for those entitled to live in this country.

The hon. Lady asked whether I would speak to DHSC Ministers about the review of charges, which I understand has not yet been published. I am happy to make that representation to my fellow Ministers.

[Caroline Nokes]

My hon. Friend makes an important point, which underpins the immigration health surcharge. The Government took the view, and in successive general elections made it very clear, that we would continue to implement and, indeed, increase the immigration health surcharge. As I said, this is a matter for EEA nationals and is still for negotiation as part of our future relationship.

[Afzal Khan]

Does the Minister agree that it is also true that EU citizens are more likely to provide health services than receive them, and are more likely to be young and therefore need fewer NHS services?

[Caroline Nokes]

I thank the hon. Gentleman for his comments. I cannot comment on the demographics of EU citizens. We know that those who are the most mobile in the labour force tend to be the youngest. He is right to comment on the valuable contribution that many EEA citizens make to our national health service. It was argued with me in the Chamber some months ago that there was a Brexodus of EU nationals from our health service, and I was assured by the then Minister in the Department of Health and Social Care that there are now 4,000 more EU nationals working in our NHS than there were at the time of the referendum in 2016.

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

Afzal Khan Excerpts

Thursday 28th February 2019 Public Bill Committees

[Kate Green]

I am grateful for the hon. Gentleman’s support, and I agree with him about the huge significance for individuals and families of the way in which social security co-ordination regulations are adopted and adapted in future. It is about how much money people have to live on, to support their families or in their retirement. They have every expectation of a right to the support, because they have paid in and contributed to social insurance systems, and it would be frankly unethical of any Government to damage those legitimate expectations.

In conclusion, through my amendment I seek to curtail Ministers’ delegated powers in relation to social security co-ordination. The Government have stated that the anticipated policy changes, both in a no-deal scenario and in certain deal scenarios, could not otherwise be delivered by existing powers such as the European Union withdrawal agreement powers. However, in my view, such policy changes, or at least the principles of the policy, should be set out in primary legislation. That will be the case in a deal scenario, as the withdrawal agreement and its implementing primary legislation will address future policy on social security co-ordination. In a no-deal scenario, the European Union (Withdrawal) Act 2018 provides sufficient powers to make regulations—indeed, the Government have already drafted them—to maintain the status quo as far as possible until an agreement on social security co-ordination is reached with the EU for the future, at which point further primary legislation will be needed.

It is for those reasons that I commend my amendment to the Committee. It is important that we have parliamentary oversight and parliamentary scrutiny of Ministers’ powers in the area of any future decisions that will have an impact on social security entitlements.

[Afzal Khan (Manchester, Gorton) (Lab)]

Once again, it is a pleasure to serve under your chairmanship, Mr Stringer. I start by thanking my hon. Friend the Member for Stretford and Urmston for laying out this amendment.

The Henry VIII powers would allow the Government to remove rights to aggregate pensions and disability entitlements that EU citizens in the UK and UK citizens in the EU have built their lives around. It is vital that the Government do not make regulations that might remove the ability of British citizens and European economic area nationals to aggregate pension rights and social security benefits without proper scrutiny by Parliament, so we support this amendment. These social security rights are vital for EU citizens in the UK as well as UK citizens in the EU.

People will have moved back and forth between the UK and the EU on the assumption that they will be able to bring their pension entitlements with them. For example, a German national might move to the UK midway through their career, work here for 10 years, and then go back to Germany to retire. The current EU regulations allow them to receive a pension based on their contributions both in Germany and in the UK. The same is true for a UK national who moves to work in Germany.

If we have a withdrawal agreement, those rights will be guaranteed, but if we do not have a withdrawal agreement we do not know what will happen. Perhaps the Minister can help us with that.

In an evidence session, it was pointed out by British in Europe witnesses that 80% of the British people living in Europe are of working age or below, and more than 1 million people are affected by social security implications. Removing the ability to aggregate social security benefits will deter EU citizens from coming to work in the UK, because they will not be able to export social security from the UK, despite having paid into the system. The same would apply for UK citizens moving into the EU.

There is a particular concern among UK citizens living in the EU about the uprating of pensions. The percentage increases can accumulate to be very significant for pensioners living in the EU, particularly in the context of the declining value of the pound.

The UK state pension is already the lowest in all the OECD countries, and a refusal to uprate would cause significant hardship for many UK citizens. At the moment, the Government have committed to continue the uprating of pensions until April 2020, but not beyond. Can the Minister provide some much-needed clarity for the UK citizens living in the EU about the position of pensions beyond 2020?

If the UK introduces restrictions on social security, it is to be expected that the EU will respond in kind. We heard during our evidence session from the TUC that it is

“very worried about the increasing social insecurity and the welfare repercussions for British people abroad.”––[Official Report, Immigration and Social Security Co-ordination (EU Withdrawal) Public Bill Committee, 12 February 2019; c.38, Q109.]

We heard from the British in Europe witnesses during our evidence session that the Bill has had a negative effect on discussions with EU Governments. Kalba Meadows was clear that

“national Governments across the EU27 are reticent in coming forward with their own legislation, because they are concerned that the rights of their nationals living in the UK will not be equally protected.”––[Official Report, Immigration and Social Security Co-ordination (EU Withdrawal) Public Bill Committee, 14 February 2019; c. 146, Q364.]

[The Minister for Employment (Alok Sharma)]

It is an absolute pleasure to serve under your chairmanship today, Mr Stringer. I start by thanking the hon. Member for Stretford and Urmston for her amendment to clause 5. She made a wide-ranging speech, which covered many of the points that might be raised when we consider clause 5 stand part, and I will try to address some of the points that she made. I put it on record that whatever our political differences, I have always thought of the hon. Lady as one of the most courteous and considered Members in the House, and for that we should all be grateful.

The hon. Member for Manchester, Gorton made some interesting remarks. Before I discuss amendment 26, I say generally that if colleagues want to give citizens certainty, the best way of doing so is to support the withdrawal agreement and the deal that will be returning to the House. Many sincere views are expressed, and people are concerned for citizens—I completely get that—but the best way of providing certainty is to support the deal.

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[Alok Sharma]

Clause 5 provides an essential legislative framework to ensure that the Government can reflect their preferred social security co-ordination policy outcomes after the UK has left the European Union, responding to the outcome of negotiations. It will enable the Government to deliver policy changes post exit both in the event of no agreement being reached on future social security co-ordination matters and to support deal scenarios in which a UK-EU agreement differs from current social security co-ordination measures.

The clause provides a power for the Secretary of State or Her Majesty’s Treasury to modify the current social security co-ordination regulations. The regulations provide for social security co-ordination across the EEA and will be incorporated into domestic law by the European Union (Withdrawal) Act when the UK leaves the EU. Clause 5(3) sets out some examples of the manner in which the power may be used. One such example is that regulations may make different provision for different cohorts, and some reference points for differentiation are suggested. This is particularly relevant in a no-deal scenario, as the regulations could, for example, provide protection to those who would otherwise have been in the scope of the withdrawal agreement in line with a unilateral offer. Very importantly, regulations made using powers in this clause will be subject to the affirmative procedure, so they will be scrutinised and must obtain the approval of both Houses.

In subsection (4), the clause also gives the Government the ability to make consequential changes to other primary legislation and other retained EU law to ensure that the changes to which the main power gives effect can be appropriately reflected. It may, for example, be used to address technical matters, inoperabilities and inconsistencies.

In subsections (5) and (6), the clause makes it clear that any directly affected rights that will have been saved by the European Union (Withdrawal) Act shall cease to be recognised to the extent that they are inconsistent or capable of affecting the changes made using the powers in the clause. This is necessary to address inoperabilities and conflicts of law that might arise as a result of regulations made under this clause. It will ensure that any policy changes are able to be delivered effectively.

It is vital that, across all EU exit legislation, the UK Government continue to honour any commitments that they have made in the devolution settlements. Therefore, subsections (1) and (7) of the clause confer powers on the devolved Administrations to legislate in areas for which they have competence. Officials in the UK Government and devolved Administrations have worked together on the correct approach for this clause, and legislative consent motions will be sought from the devolved legislatures in relation to this approach. Subsection (7) defines an appropriate authority, clarifying that the power is exercisable by the Secretary of State or the Treasury, a devolved authority, or jointly.

It is reasonable to assume that, in a deal scenario, if a withdrawal agreement is reached, the implementing vehicle for the withdrawal agreement will provide the necessary protections for those who fall within its scope, and Parliament has the power to ensure that that is the case. I want to reassure colleagues that the power in this clause will not be exercised to remove or reduce commitments made in relation to those individuals within the scope of the withdrawal agreement. The exercise of any powers within this clause will also be subject to the outcome of further negotiations with the EU on a future agreement. In a deal scenario, the clause will be necessary to deliver policy changes to the retained regime that will cover individuals who fall outside the scope of the deal, to reflect the reality of our new relationship with the EU.

In addition, this clause is essential to ensure that the UK Government are able to provide appropriate protections and make appropriate policy changes in a no-deal scenario. Without the clause, the Government have only the power contained in the European Union (Withdrawal) Act to fix deficiencies within the retained system of social security co-ordination. The current social security co-ordination regime operates on the basis of reciprocity. The European Union (Withdrawal) Act power allows us to ensure that the regime will operate on day one of exit, but does not enable us to deliver policy changes, including those that would help us to deliver effective support for UK nationals in the EU. This clause allows us to amend the rules in an appropriate and manageable way if the Government need to operate the system unilaterally, and to deliver changes to the retained regime.

As a responsible Government, we are preparing for all eventualities, and the power in this clause is necessary to provide the Government with the flexibility required to respond to a range of scenarios.

The aim of schedule 2 is straightforward. It sets out the power of the devolved authorities under the social security co-ordination clause—clause 5. The clause confers new powers on Scottish Ministers and, indeed, the Northern Ireland department, to amend the limited elements of the social security co-ordination regulations that fall within devolved competence. We are thus providing the devolved Administrations with the powers that they need to amend aspects of the regulations in areas of social security that are devolved—in the same way as, rightly, the UK Government have powers with respect to laws affecting the UK as a whole.

It is important that the powers in the Bill should not be so narrow as to hamper the devolved Administrations’ ability to amend the elements of the regulations that are within their competence. It is also important to set out, as the schedule does, the parameters for the powers. They should not be wider than is necessary to achieve their purpose. For example, the schedule ensures that the same rules on consent and consultation that the devolved authorities must follow when making provisions in their own legislation apply for regulations made under clause 5. We sought that balance by focusing on the specific aims and applying safeguards to ensure, for instance, that the powers will not be used in ways that might be outside devolved competence.

Schedule 3 simply gives further detail about the making of regulations under the social security co-ordination clause. It provides further detail about the form that regulations will take under the clause, whether they are statutory instruments, Northern Ireland statutory rules or Scottish statutory instruments. The schedule also provides that the use of the power is subject to full parliamentary scrutiny. Its exercise will be subject to the affirmative procedure, which means that regulations made using the power must obtain the approval of each House. It also gives clarity to the procedures that the devolved authorities will need to follow.

Paragraph 4 provides that where the UK Government and a devolved authority exercise the powers under clause 5 jointly, the affirmative procedure applies in both the UK Parliament and the devolved Parliaments or Assemblies. Paragraph 5 permits other regulations, subject to the negative procedure, to be included in an instrument made under clause 5. That means that even where a regulation would be subject to a lower level of scrutiny, if it is combined with regulations under clause 5 a higher level of scrutiny—the affirmative procedure—will apply.

[Afzal Khan]

Labour believes that if the Government want to make far-reaching changes to social security, they should be subject to scrutiny, in primary legislation. As we discussed in the clause 4 debate, secondary legislation does not provide Parliament with an opportunity for adequate scrutiny and oversight of major policy changes. The rights in question were brought in by primary legislation, and it is only right that their removal should be possible only with the same level of scrutiny.

The powers in the clause are not necessary. If the Government really want to tidy up the statute book or make other, minor, changes to legislation, section 8 of the European Union (Withdrawal) Act 2018 already gives them the power to remove the co-ordination regulations and replace them. In fact, they have already laid four regulations under the Act. We feel that the power in the clause would enable the Government to set out global changes to social security, which should rightly be done through primary, not secondary, legislation.

That position was set out by Justice during our evidence sittings. It was concerned about

“the extraordinary breadth of power that it creates”.––[Official Report, Immigration and Social Security Co-ordination (EU Withdrawal) Public Bill Committee, 12 February 2019; c. 59, Q157.]

The witness set out clearly:

“It is simply not appropriate to leave that to a policy change by way of delegated power, but it seems to us, from their memorandum, that Government are expressly intending to do that to get around the limitations in section 8.”––[Official Report, Immigration and Social Security Co-ordination (EU Withdrawal) Public Bill Committee, 12 February 2019; c. 60, Q158.]

Similarly, Professor Steve Peers was clear that

“the Government should not have unlimited powers and some constraints should be set by primary legislation.”––[Official Report, Immigration and Social Security Co-ordination (EU Withdrawal) Public Bill Committee, 14 February 2019; c. 123, Q308.]

Urgent, widespread changes to social security co-ordination are not needed in a rush. Thanks to the 2018 Act, there is law in place. The statutory instrument amendments are in place and there is no urgent need for an overhaul of social security co-ordination that would justify such a lack of scrutiny.

The House of Lords Delegated Powers and Regulatory Reform Committee is clear that the Government have provided an inadequate justification for the transfer of power from Parliament to the Government in the clause. It recommended the removal of clause 5 in its entirety. It refers to a requirement to provide an “exceptional justification” for a skeleton Bill, which has not happened in this case. As the Committee puts it,

“Parliament is being asked to scrutinise a clause so lacking in any substance whatsoever that it cannot even be described as a skeleton.”

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Those are the two options I put before the Committee for debate today, and I look forward to hearing the Minister’s response.

[Afzal Khan]

As demonstrated by our voting on both Second Reading and the clauses that have been voted on so far, we do not agree with what the Government are doing in this Bill. However, we do not support the view that there should be a different immigration system for different parts of the country. We need a flexible immigration system that will allow businesses and public services to access the workers they need, but one that applies to the whole of the UK, not just Scotland.

I understand that there are issues with regional variation in salary levels, and that different areas of the UK have different needs in terms of migration. However, that is not an issue that affects only Scotland. My own region, and yours too, Chairman, the north-west, has very different salary levels and economic needs from London and the south-east, so it will have different migration needs.

Without a border between Scotland and the rest of the UK, we do not see how a different immigration system could work. How could we ensure that someone with the right to work in Scotland was not working in England or Wales? We fear that that might lead to a further reliance on the hostile environment, as we would be relying on employers and landlords to enforce the border between Scotland and the rest of the UK. In view of that, we do not support the amendment.

[Caroline Nokes]

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

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

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

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

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

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

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

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

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[Stuart C. McDonald]

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

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

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

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

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

Amendment, by leave, withdrawn.

[Afzal Khan]

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

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

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

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

[The Chair]

With this it will be convenient to discuss the following:

Amendment 36, in clause 7, page 5, line 32, at end insert—

“(5A) Section 1 must not be brought into force before 30 June 2021.”

This amendment would prevent the repeal of free movement until after the 30 June 2021.

Amendment 15, in clause 7, page 5, line 33, leave out from “which” to end of line 34, and insert

“the House of Commons has passed a motion in the form set out in subsection (5B) above.”

This amendment is consequential on Amendment 14.

[Afzal Khan]

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

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

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

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

[Stuart C. McDonald]

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

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

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[Caroline Nokes]

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

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

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

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

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

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

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

[Afzal Khan]

I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Amendment proposed: 36, in clause 7, page 5, line 32, at end insert—

“(5A) Section 1 must not be brought into force before 30 June 2021.”—(Stuart C. McDonald.)

This amendment would prevent the repeal of free movement until after the 30 June 2021.

Question put, That the amendment be made.

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

Afzal Khan Excerpts

Tuesday 26th February 2019 Public Bill Committees

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

I rise to speak to new clause 23, which essentially seeks to prod the Government to provide reassurance that they will do what they have promised to do, and we urge them to do so as quickly as possible.

The Government have made a very important promise. Under section 17 of the EU withdrawal Act, the Government agreed to seek an agreement with the EU to ensure that unaccompanied asylum-seeking children in an EU state can continue to be reunited with family members in the UK after Brexit. That was very welcome.

Of course, all of that is currently done through the EU’s so-called Dublin III regulations, which, though not perfect, have been vital in ensuring that children are not left unaccompanied and in danger of exploitation and trafficking. We must ensure that that route is not closed off; but, if it is, the danger is that more children will be forced into the hands of traffickers and smugglers, in order to reach family here in the UK. I do not think that anyone on this Committee would want that to happen.

New clause 23 seeks to put a timeframe on that promise. If there is a Brexit deal, we ask the Government to include and bring into force that agreement before the transition ends. If there is no deal, the new clause seeks to ensure that the arrangement comes into force within three months of withdrawal. Essentially, therefore, this is the opportunity for the Minister to let us know what is happening to implement Parliament’s express will in section 17 of the withdrawal Act.

Equally, this is also the chance for the Government to consider going further than their original commitment. For example, why not also seek to implement the other Dublin provisions, so that it is not just unaccompanied children who can be reunited with family here but other asylum seekers, too, where appropriate?

As I have said, Dublin III is not perfect. It relies on other EU countries to process asylum claims and then request a transfer, which—as we have often seen—can be a ludicrously slow process. Would it not be better simply to use immigration rules to allow asylum seekers to be reunited here, thereby potentially bypassing that first administrative step?

Finally on new clause 23, of course the Dublin rules on family reunion only apply in a European context. Why not apply them more broadly so that unaccompanied asylum-seeking children and other asylum seekers can be reunited with family here in the UK without having to make dangerous journeys to Europe? We will revisit some of these issues when we debate a later amendment, but for now a progress report from the Minister would be very much appreciated.

I lend my full support to the hon. Member for Stretford and Urmston Green for everything she said about amendment 19 and the right of asylum seekers to work. That policy has had the Scottish National party’s full support for many years, and to my mind it is an absolute no-brainer. As she said, first of all it is good for asylum seekers themselves. Anyone who spends 12 months out of work will find themselves in a drastic situation, and that is just as true, possibly more so, for asylum seekers, whose skills are lost and run down, which can have a negative impact on self-esteem and mental health. Frankly, as the hon. Lady said, the situation is putting people in poverty, given the unacceptably low levels of asylum support that they are left to subsist on.

The right to work is also good for employers, particularly because at a time when the Government are very happy to tell us that unemployment is at very low levels, access to workers will always be welcome. Of course, asylum seekers have a range of skills. A scheme in Glasgow is successfully integrating refugee doctors into the workforce, but why do we have to wait for them to be recognised as refugees? If they have the skills to work in the NHS, why not allow that to happen when they are still asylum seekers?

The right to work is good for communities; it is pivotal for integration and for tackling poverty. Some locations to which asylum seekers are dispersed are not the wealthiest in the country—the Minister and I have debated that a lot recently. Often, in fact, they are among the poorest, so putting in place a new population who do not have the right to work does not help. It would be good for communities if people were earning an income that they could spend in the community.

As the hon. Member for Stretford and Urmston pointed out, the right to work is good for the public purse. Put simply, there would be savings on asylum support, and tax revenue would be gained from the income tax and the increased spending of asylum seekers. Various estimates put the Government’s savings at tens of millions of pounds.

From time to time, the Government have expressed concerns about the pull factor, but if that were a significant issue no asylum seekers would come to the United Kingdom at all, because, as the hon. Lady pointed out, we are the outliers. By implementing a right to work, we will not be very different from neighbouring countries. I have already mentioned Canada, which is not a neighbouring country, but which pretty much allows the right to work from day one.

The proposed measure is popular with the public. I welcome the fact that the Government have said that they are willing to consider the arguments, but it is time to get a move on. The right to work is long overdue and the time for procrastination has come to an end.

[Afzal Khan (Manchester, Gorton) (Lab)]

I thank my hon. Friend the Member for Stretford and Urmston and the hon. Member for Cumbernauld, Kilsyth and Kirkintilloch East for tabling the amendment and new clause, both of which we support. The immigration White Paper has almost nothing to say about asylum or refugee issues, even though there are so many problems.

Amendment 19 deals with the right to work. The right to work would allow asylum seekers the dignity of work, as has been said, and would enable them to earn enough money to support themselves and their families. It would also encourage integration and prevent people from having to rely, for no good reason, on the meagre state subsidy of £5.39 a day. If the Home Office cannot resolve cases in the six-month target time, it is right that asylum seekers be given the right to work.

The waste of talent has already been touched on. I came across an asylum seeker in my constituency who was a Syrian consultant but who has not been allowed to work, even though, with 100,000 job vacancies in the NHS, we really need that skill. Research has shown that not being able to work for a long period doubles the risk of asylum seekers experiencing major mental health problems.

We continue to support the right of unaccompanied children to be reunited with family members in the UK after our withdrawal from the EU. An SNP private Member’s Bill is trying to achieve the same outcome and it is right that we support both the amendment and the new clause.

[Caroline Nokes]

I welcome the opportunity to speak to amendment 19 and new clause 23. I thank the hon. Member for Hornsey and Wood Green (Catherine West), who tabled the amendment, and the hon. Member for Stretford and Urmston, who moved it. I welcome their ongoing contribution to the debate about the right of asylum seekers to work.

The amendment would require provision to be made under clause 4 to enable asylum seekers who are EEA nationals, and their adult dependants, to apply to the Home Office for the right to take up employment if a decision on their asylum claim has not been made within six months of the date on which it was recorded.

As hon. Members may know, the European economic area is not the same as the European Union. It is slightly wider and includes Liechtenstein, Norway and Iceland, which are not members of the EU. That distinction is very important. Under our current immigration rules, asylum claims from EU nationals are treated as inadmissible—in other words, they will not be substantively considered unless there are very exceptional circumstances. Claims from EEA nationals whose home countries are not part of the EU are not inadmissible.

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[The Chair]

We will come to new clause 23 later in the agenda.

[Afzal Khan]

I beg to move amendment 20, in clause 4, page 3, line 10, at end insert—

“(5A) Any regulations made under subsection (1) which introduce a work visa scheme for EEA nationals must be developed in consultation with trade union representatives.

(5B) The Secretary of State must publish an impact assessment on workers’ rights for any regulations made under subsection (1) which introduce a work visa scheme for EEA nationals.”

[The Chair]

With this it will be convenient to consider the following:

New clause 20—Seasonal agricultural work visas scheme for EEA and Swiss Nationals—

(1) The Secretary of State must introduce a sector-specific work visa to enable farmers to employ EEA and Swiss nationals to come and work in the United Kingdom for limited time periods.

(2) Any EEA and Swiss national is eligible to apply for a visa issued under this section if—

(a) they have secured a job offer in the United Kingdom; and

(b) they possess a certificate of sponsorship from a UK employer with a valid sponsorship licence.

(3) A work visa granted under this section remains valid for—

(a) the duration of time that the person it is granted to is employed in the United Kingdom; and

(b) for a period not exceeding six months continuous employment.

(4) No minimum income requirement shall be required for a visa issued under this section.

(5) The Secretary of State may by regulations made by statutory instrument make such further provision as the Secretary of State considers appropriate to establish a farming sector-specific work visa under this section.

(6) Any statutory instrument issued under this section is not to be made unless a draft of the instrument has been laid before, and approved by a resolution of, each House.

New clause 21—Work visas for EEA and Swiss Nationals—

(1) The Secretary of State must introduce a general work visa to enable EEA and Swiss nationals to come and work in the United Kingdom.

(2) Any EEA and Swiss national is eligible to apply for a visa issued under this section if—

(a) they have secured a job offer in the United Kingdom; and

(b) they possess a certificate of sponsorship from a UK employer with a valid sponsorship licence.

(3) A work visa granted under this section remains valid for—

(a) the duration of time that the person it is granted to is employed in the United Kingdom; and

(b) for a period not exceeding 12 months continuous employment.

(4) No minimum income requirement shall be required for a visa issued under this section.

(5) The immediate family members of a person granted a general work visa under this section are entitled to reside in the United Kingdom for the duration of the validity of the work visa.

(6) In this section “immediate family member” means an EEA or Swiss citizen’s spouse or civil partner, or a person related to them (or their spouse or civil partner) as their—

(a) child or grandchild under 21 years old, or dependent child or grandchild of any age; or

(b) dependent parent or grandparent.

(7) The Secretary of State may by regulations made by statutory instrument make such further provision as the Secretary of State considers appropriate to establish a general work visa under this section.

(8) Any statutory instrument issued under this section is not to be made unless a draft of the instrument has been laid before, and approved by a resolution of, each House.

[Afzal Khan]

The Government’s White Paper outlines the intention to introduce a new 12-month general work visa, which it says will be necessary to make up the shortfall in workers created by the ending of freedom of movement. The Government claim that it will be a skill-based system, even though they have repeatedly identified an income limit of £30,000, as we have heard many times today, which is above the annual wage for full-time workers. Our concern is that that will limit the ability of employers in both the public and private sectors to recruit to fill labour and skill shortages. It will also create a new category of low-skilled migrants and temporary workers whose rights will prove extremely difficult to uphold in practice. As a result, it is likely to have a detrimental effect on the ability to uphold the rights of all workers who occupy the lower-paid jobs affected.

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[Caroline Nokes]

My hon. Friend is right to point out that the new clauses relate only to the EEA. Our future immigration system, which will undoubtedly be the subject of much debate, will have to provide the level playing field of which he speaks.

As I have set out, the Government have announced the two-year seasonal workers pilot, which allows non-EU migrants to work on UK farms for six months, specifically in the edible horticultural sector. The pilot will test the effectiveness of our immigration system in helping to alleviate seasonal labour shortages during peak production periods, while maintaining robust immigration controls, safeguarding migrant workers and ensuring that the impact on local communities and public services is minimal. There will be a thorough review before any decisions are taken about long-term arrangements. Piloting and evaluating is the right way to proceed, rather than taking a final decision now.

I advise the Committee that new clause 21, although well intentioned, is not necessary. When we debated amendment 20, I set out some details of the future immigration system, but let me remind the Committee what we will be providing. First, there will be a route for skilled workers, which will be available to nationals of all countries and will require workers to be sponsored by an employer to do a specific job. As now, however, there will be the facility to change jobs and move from one licensed sponsor to another.

In line with the recommendations of the independent Migration Advisory Committee, we are expanding that route to encompass medium-skilled as well as high-skilled workers. We are also abolishing the cap and the resident labour market test for high-skilled workers. Those who come to the UK through the skilled workers route will need to meet an income requirement, and I make no apology for that. That is a continuation of the provision in the current points-based system which, I remind the Committee, was introduced by the last Labour Government.

MAC’s report, which was published in September, said:

“We believe that these salary thresholds are likely to ensure that these migrants raise the level of productivity in the UK, make a clear positive contribution to the public finances and contribute to rising wages.”

I am sure that every member of the Committee shares those objectives. We have set out that we intend to spend the next year engaging with businesses, employers and other stakeholders before determining the level at which salary thresholds should be set.

Let me turn to more temporary and potentially less skilled migration, with which new clause 21 is particularly concerned. The immigration White Paper sets out that as a transitional measure we intend to introduce a temporary work visa, which will allow nationals of low-risk countries to come to the UK for up to a year to work in any job, at any skill level.

Unlike in the new clause proposed by the hon. Member for Manchester, Gorton, there will be no requirement to have a prior job offer or to be sponsored by a particular employer, and that is an important safeguard against exploitation. The temporary work route that I have described gives the hon. Gentleman much of what he is looking for with the new clause: a route for low-risk nationals to come to the UK for up to 12 months to work at any skill level and—crucially, given the problems that this might entail—without the need to be tied to a particular employer.

I apologise for having spoken at some length, but these are important issues worthy of serious consideration. I hope that I have reassured hon. Members that the protection of migrant workers is at the forefront of the Government’s thinking.

[Afzal Khan]

Does the Minister accept that during the evidence sessions, speaker after speaker who touched on the less skilled route and the 12-month visa said that they were not helpful? One person actually said that a 12-month scheme had been trialled but abandoned. What is the difference?

[Caroline Nokes]

We did hear evidence in which people expressed concerns about the temporary routes, but we also heard from the agricultural sector, which was keen that there should be some. I vividly remember some evidence that indicated that temporary routes would inevitably—that was the word used—lead to exploitation. In the rebuttal from the National Farmers Union, however, we were given much evidence about workers on temporary contracts who returned year after year. That suggests that short-term routes would not inevitably lead to exploitation.

That remains something for us to consider carefully by listening to the evidence and the discussions that we have in the next 12 months, so that we understand the sectors—particularly the agricultural sector—that are engaging with us. I highlight again the fact that we are in the final stages of establishing the relevant pilot scheme.

[Caroline Nokes]

As I have said, this is a transitional route that we will review carefully, but there are very good reasons why we do not propose that dependants should be able to come for such a short period. Of course, “no recourse to public funds” is about encouraging people who come here for work to not be reliant on the benefits system, which they will not have paid into for any significant period. We will have an immigration route for high-skilled and medium-skilled workers of all nationalities, and we will have a transitional route for workers at all skill levels. I hope that the hon. Member for Manchester, Gorton feels able to withdraw the amendment.

[Afzal Khan]

I thank the Minister for the explanation that she has given, but I wish to press amendment 20 to a Division.

Question put, That the amendment be made.

--- Later in debate ---

[Caroline Nokes]

The hon. Gentleman will be conscious that our immigration rules since the 1971 Act have been largely set out in the rules, as opposed to primary legislation. This is a framework Bill to end free movement. As I have put on record in a statutory instrument Committee, I fully expect there to be a subsequent immigration Bill. There are many aspects of future policy that are perhaps not yet in this Bill.

[Afzal Khan]

Does the Minister not agree that there are very dangerous implications for patients and their medicine from where we are? We have heard the figures: there are 2.5 million people currently living with cancer; one in three of us will experience that and the number is increasing. When we look at the figures for the number of people from the EU, it is not simply about looking ahead at what we may do; people are being affected today. We need to be careful and move quickly.

[Caroline Nokes]

The hon. Gentleman will be aware that the future system is intended to be introduced from 2021 and of my commitment to achieving a deal with the EU that is supported by Parliament, so that we can have transitional arrangements, which are crucial. However, now is not the appropriate time to publish impact assessments, which will come forward at the relevant time. I therefore invite the hon. Member for Scunthorpe to withdraw the amendment.

--- Later in debate ---

[Stuart C. McDonald]

I beg to move amendment 33, in clause 4, page 3, line 10, at end insert—

“(5A) Regulations under subsection (1) must provide for admission of EU nationals as spouses, partners and children of UK citizens and settled persons.

(5B) Regulations under subsection (1) may require that the EU nationals entering as spouses, partners and children of UK citizens and settled persons can be maintained and accommodated without recourse to public funds, but in deciding whether that test is met, account must be taken of the prospective earnings of the EU nationals seeking entry, as well as any third party support that may be available.

(5C) Regulations under subsection (1) must not include any test of financial circumstances beyond that set out in subsection (5B).”

This amendment would ensure that UK nationals and settled persons can be joined in future by EU spouses and partners and children without application of the financial thresholds and criteria that apply to non-EEA spouses, partners and children.

As hon. Members will have gathered, I disagree with immigration law and rules in this country, but one area of those rules about which I feel particularly strongly is what I regard as the egregious and outrageous rules on family. The problem with the Bill and the White Paper is that, although thousands of families have already been split apart because of the nature of current immigration rules, in future, many more families will face that awful situation. I could pick away at and criticise different aspects of the family immigration rules, but the amendment focuses on spouses, partners and children.

My message to the members of the Committee is that this could be us. If we lost our seats or were lucky enough to be able to retire, we could find ourselves on incomes that did not allow us to sponsor spouses or children to join us from overseas. It could affect our kids or our nephews and nieces. It certainly affects lots of our constituents. I have raised the matter a number of times in debates in Westminster Hall, in the main Chamber, and at Question Time, and I am then inundated with emails from families up and down the country, who are really suffering because we have some of the most draconian immigration rules for families in the world.

I will start with two case studies to highlight the issue, although I could easily provide hundreds. Kiran works six days a week for the NHS, booking people into appointments with their GPs. Sunday should be her only day off, but she instead gets up at the crack of dawn to clean a 21-acre car showroom. Her work is exhausting; there is no respite because the next day, the weekly routine starts again, and she goes back to her nine-to-six job working for the NHS. She has been doing that for a year, all so that she can push her income above the £18,600 threshold and be with her husband in the country that she grew up in. She says:

“I can't even describe to you how it feels. Why do we have to struggle so much to have our loved ones here? It doesn't feel very British to make people suffer like this. I used to be proud to be born and bred here, but all this has changed that. The system splits people apart and makes them feel like they’re worthless.”

The second case study is that of Juli and Tony. Juli met her husband, Tony, while studying for her master’s degree in Northumbria. He is a self-employed plasterer from Edinburgh and she is an artist and media management expert from the US. They met at a party, fell in love and got married after a whirlwind romance. Tony earns more than £18,600 from the business that he runs, but a technicality means that not all of his income is counted. As a result, this loving couple have not been allowed to start building their life together in the UK.

Juli has instead been sent back to the US, where she has slept on a sofa and lived out of a suitcase for months while she fights to come back to her husband. Tony cares for his mother, who suffers from severe mental health problems, and struggles with depression himself, especially without his wife by his side. Juli says:

“I hope this is the year my husband and I finally get to be together again, and I hope it’s sooner rather than later. My husband is suffering, and I’m very worried about him. I would like nothing more than to be able to use my degree to work, contribute to the Scottish economy and finally be able to build a life with my husband and start a family.”

As I said, I could give a million more examples, but every single one of them is about real lives turned upside down by unnecessarily restrictive immigration rules. The Bill and the White Paper would extend those rules to more families. We should do the opposite and try to repeal the worst of those provisions, which came into force in 2012. Since 2012, the minimum income rule has meant that thousands of British citizens, people with indefinite leave to remain and refugees are not allowed to live with their partners, but are forced to leave the country and live thousands of miles away from extended family and support networks. That is all because they do not meet the financial threshold.

As we know, the base threshold is currently set at £18,600, so a British citizen or a settled person must have an income far higher than the minimum wage in order to sponsor the visa of a non-EEA partner. The threshold is higher still if someone wishes to sponsor a child as well as a partner. If someone is sponsoring a partner and one non-British child, the threshold is £22,400 a year, plus a further £2,400 for any additional child. Usually, only the sponsor’s UK income counts towards meeting the threshold, which to me undermines some of the reasons offered by the Government in defence of the rules. If it was seriously only about whether a couple could support themselves without recourse to public funds, why is there this rule that prohibits any account being taken of the potential earnings of the spouse applying to come in from outside the EEA?

Proving the income is also complex, and can be extremely stressful. There are seven separate categories of ways in which sponsors can show that they earn above the required amount. In most cases, only income from UK employment can be counted, while income from overseas employment, the non-British partner’s potential earnings, job offers and support from third parties are excluded from consideration. None of that can be used to demonstrate a couple’s self-sufficiency.

To give an idea of the scale for the people affected, the UK’s income requirement is the highest in the world relative to average earnings. It is equal to more than 121% of the national living wage for those aged 25 and over, 129% for 21 to 24-year-olds and 161% for those aged between 18 and 20. That covers people who are employed on the basis of a full-time salary, but for the ever-growing number of self-employed the system is even more difficult to navigate. If the British partner is self-employed, couples will often end up spending at least 12 months apart, because the sponsor must be able to prove that they met the minimum income requirement over the course of the last full financial year, which is April to April, and applications for an initial spouse visa can usually only be made overseas.

Various groups are disproportionately affected, including women. In many parts of the country, well over half of full-time employed women would be affected. In some regions, more than 60% of the population would not be able to sponsor a spouse from outside the EEA. In many of the constituencies of MPs in this Committee, that will be the percentage of constituents who could not have a spouse join them in this country.

The rules have had a severe detrimental impact on the thousands of families who are unable to meet the requirements. Due to the minimum income rules, British citizens and settled UK residents have been separated from partners, parents and grandparents, often indefinitely. The Children’s Commissioner for England, together with academics from Middlesex University and researchers from the Joint Council for the Welfare of Immigrants, have documented the short and long-term negative effects of those rules on children whose parents are unable to satisfy the requirements.

Parents reported a range of behavioural and psychological problems in their children, including separation anxiety, anger, aggression, depression and guilt, disrupted sleep, bed wetting, social problems with peers and changes to eating patterns. Such effects stem from the enforced separation of children from a parent and/or other family members as a result of the Government’s immigration policy, as well as the transfer of parental stress and anxiety on to children.

NHS England alone employs more than 225,000 British citizens at salaries below the minimum income requirement. How can MPs tell them that they are not allowed to be joined here by their overseas spouse, or that they have to leave their job in the NHS to go and join their spouse overseas?

Average annual pay for teaching assistants, who make up 25% of the UK teaching workforce, is estimated to be between £13,600 and £15,900. The minimum income requirement means that those workers, too, are unable to establish a stable family life in the UK, and many take the difficult decision to move to their partner’s country of origin, or to a third country.

We have also heard about careworkers, more than 70% of whom would not be able to establish a family life in this country with a non-EEA partner under existing immigration rules. There are currently more than 100,000 empty jobs in the adult social care sector. With a fifth of all workers in the sector aged 55 or over, that number will skyrocket over the coming years. If the minimum income rules are extended to cover the spouses and partners of EU nationals, as set out in the White Paper, the care sector will be one of many to be heavily impacted.

Across all sectors, the minimum income requirement is forcing workers with children out of salaried employment. Parents unable to sponsor their partner to come to the UK to live with the family are often forced to choose between paying for prohibitively expensive childcare to enable them to continue working and to reach the threshold, or giving up work altogether in order to act as the family’s sole caregiver. That effect was not properly anticipated in the Government’s initial assessment of the economic impact of the rule changes.

As well as having a negative impact on the workforce, the policy risks harming children, since children of single parents who work part-time are at greater risk of falling into poverty. Some would-be sponsors with children will never be able to reach the minimum income requirement due to their childcare obligations. Single-parent households have a median annual income of about £17,800, compared to about £23,700 for two-parent households. All the stats under the sun cannot properly reflect the human cost and human tragedy at the heart of all this.

I finish with another quote, from a mother with a two-year-old son:

“I am a single mother who has to look after my son as well as provide for my family. I did not want or choose to be in this position but I am being forced to”

by the Government’s immigration rules. I am shocked. It is way after time that we rolled back these provisions. There is no way that we should extend them to many thousands more families who will face these heartbreaking situations. The amendment will prevent that from happening. It is only a first step, because it will stop the extension of the rules, whereas what we actually want is for the rules to be rolled back. Will the Minister comment on that?

Will the Minister also address the evidence we heard about Surinder Singh cases, in which British citizens want to return with non-EEA national spouses, having exercised their right to free movement elsewhere. Some of them may well end up in the difficult position of having to meet thresholds that they are unlikely to be able to meet. I feel very strongly about this rule, and I ask hon. Members to give serious thought as to whether they can countenance splitting families apart in this way.

[Afzal Khan]

We support the amendment. We feel that income thresholds discriminate against working-class people on lower incomes. Around 40% to 50% of UK residents earn less than £18,600. Due to Brexit, the Government plan to extend this threshold requirement to EU citizens. In the Labour party’s 2017 manifesto, we said that we would replace income thresholds with a prohibition on recourse to public funds, which we feel is a more appropriate way forward.

The Government argue that the financial requirement supports integration and prevents a burden from being placed on the taxpayer. It is right that there are controls on who is able to sponsor a partner to come to the UK. The immigration rules already state that anybody who wants to move to the UK to be with their partner or spouse must prove that they are in a genuine, loving relationship and must pass an English test, and they will not have access to benefits when they arrive. However, demanding that the British partner proves that they earn a specific amount on top of the existing rules means that families are being forced apart purely on the basis of income.

An estimated 15,000 children are growing up in Skype families, where the only contact they have with one of their parents is through Skype, because the British parent does not earn enough for the family to live together. Another group affected is the 80% of women in part-time work who do not meet the threshold. Young mothers are particularly badly affected, often being pushed out of the labour force because they have to handle childcare responsibilities alone due to these rules. I believe that these rules have a negative impact on families, on social cohesion and on the economy. They must be changed, so I am happy to support the amendment.

[Caroline Nokes]

I appreciate the positive intent behind the amendment, which seeks to create a means whereby, in the future, EU nationals will be able to join a spouse, partner or parent in the UK who is either a British citizen or is settled here, but without being subject to the current and established financial requirements for family migration. No doubt the intention is to be helpful to that group of people and their family members in the UK.

However, the practical effect would not be to maintain the status quo for EU citizens but to create a separate and preferential family migration system for EU family members when compared with the situation of British or settled people’s family members who are not EU nationals. This would clearly lead to a perception that non-EU families are discriminated against for no reason other than their nationality, and may well be regarded as unlawful for that very reason.

The possibly unwitting introduction of direct discrimination is the Government’s main reason for objecting to the amendment, but I also draw attention to the terms of the amendment itself. It would replace the minimum income requirement for British citizens and settled persons sponsoring EU family members with a test that has three separate components: being able to maintain and accommodate the family without recourse to public funds; taking account of the prospective earnings of the EU national seeking entry; and taking into account any third-party support available. I will address each in turn.