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

David Duguid Excerpts

Thursday 14th February 2019 Public Bill Committees

[Paul Blomfield]

Q (Sheffield Central) (Lab): I want to return to a different point, which Mr Valdez-Symonds mentioned, reflecting our discussion with Professor Ryan about the way in which this Bill switches off rights without setting out clearly an alternative for the people whom it affects. I see you are nodding, Mr Berry.

Adrian Berry: The Bill was designed to bring an end to EU-derived rights that have been domesticated into UK law under the EU (Withdrawal) Act. That is what clause 1 does, and that is fine as far as it goes. It dovetails with the draft withdrawal agreement, which would extend the period of the full EU acquis applying until the end of December 2020, so there is time to consider and design properly, to think, at the top level of primary legislation, what a new immigration system should look like, to allow civil society to feed into that and to allow all of you to bring your expertise to bear on that. This Bill tries to foreshorten all of that, press it all together and say that Ministers decide and that your role is restricted.

What the Bill needs is for clause 4 to be either radically redrawn or omitted in so far as it creates Henry VIII powers, because even on a unilateral commitment about implementing the provisions of the withdrawal agreement in the event of no deal—the Home Office and the Department for Exiting the European Union have published a paper setting out how the transition period will apply on a unilateral basis—you have the time to do that. You do not need to use this Bill to try to create ministerial powers to create a future immigration system. You have the year to December 2020 to do that.

[David Duguid (Banff and Buchan) (Con)]

Q Going back to something Ms McCluskey said earlier about the opportunity to improve the simplicity of a future system if EU and non-EU citizens are treated in a similar way, we have heard that testimony from other witnesses. What justification, if any, would you or any panel member say there would be for giving EU nationals preferential treatment going forward, and what risks might that pose to the integrity or complexity of a future immigration system?

Jurga McCluskey: This goes back to what you were saying, Adrian, and links into the point you were making. I realise that time is important, but I see it from a slightly different point of view. Representing the business community, for me it is really important that we have time to allow businesses to understand what the new system will look like. Looking at the White Paper in particular, I think that is precisely what it is trying to do; it is trying to allow us time, first, to put flesh on the bones of this White Paper, and secondly, to allow businesses to have that glide path in understanding what the system will look like and to put the right administrative processes in place to facilitate that system and thereafter to use it. For me, that is a really important point.

I am not necessarily sure whether prioritising or somehow easing the Europeans and treating them slightly more preferentially is really the point. For me, if we are trying to simplify the system, the worst thing we could end up with is two different systems or a two-tier system, one for Europeans and one for all the other nationals. In a way, we would be discriminating and creating administrative burdens for businesses, and that would not be welcome. If we have to create, adapt and change because of the circumstances we find ourselves in, one simple system that is the same for everybody will be the preferential way forward.

Expanding a little further on your point about the new system, what is really welcome to the business community, looking at the White Paper alone, is all the simplifications it is trying to achieve. We are seeing a removal of the immigration cap, which is welcome; we are seeing a removal of the tier 2 panel process, which is also welcome, and we are seeing flexibility in the visitor system, which allows visitors to switch into different categories, which again is really welcome. We are also seeing removal of the resident labour market test, about which the business community has been saying for many years, “It’s not fit for purpose, please remove it,” because all it does is add administrative cost in terms of time and recruitment to a process that otherwise would be much quicker and simpler.

It is also good to see in the White Paper the commitment to modernising the sponsorship system, which at the moment really needs a substantial amount of work. What we have is no longer fit for purpose. It may have been in 2008, but now, in the era of digitisation, we have to see a little bit of a more modern way of dealing with sponsorship. That is committed to in the White Paper, which is great.

Another thing that came up many times before in these hearings is the £30,000 salary threshold. This is a really important point. Everybody is focused on the number, which I understand is important and relevant to many businesses; it is a large amount for many. However, what is also good is that, as I understand it, the White Paper actually says very loudly—perhaps I am wrong here—that the number the Government chose is a starting point, and that they want to go out and consult business on it.

[David Duguid]

Q Sorry to interrupt, but my specific question—Mr Berry might have a specific legal response to this—was on the potential complexity or legal issues that might arise from having a separate system for EU nationals, in which their family members can join them, that is not the same for non-EU members. I must declare an interest: I am married to a non-EEA citizen, so this is quite personal to me. Do you foresee any particular legal issues with that?

Adrian Berry: The political declaration envisages separate mobility provisions embraced in a new treaty covering the future relationship between the UK and the EU after Brexit. It specifically scopes out the idea that there will be an enhanced mobility regime in any event, so you will not get only one set of immigration rules. Just like now, if you are an EU citizen, you do not have an EU right of residence; you acquire leave to enter or remain, like any third-country national.

The political declaration specifically envisages the new relationship as having separate regional arrangements, because of the intensity of journeys and circulation in the region, not because of discrimination on the grounds of nationality. The Government’s aspiration, and that of the Commission, is that there will be an enhanced regime in the region, if the political declaration finds expression in a future relationship treaty. That is what we will have in any event.

To say that there will be a universal floor is a good thing, but there may be other treaty arrangements with other regions, just as Australia and New Zealand have a free movement system between them—

[The Chair]

Sorry to cut you off, but I want to get everyone in.

--- Later in debate ---

[Kate Green]

Q Are your clients expecting that they are going to have to start asking questions about people’s status on 30 March?

Hilary Brown: Absolutely.

[David Duguid]

Q I have asked this question to different panels—forgive me for that—but you will be answering for the first time. Do you believe there is any justification for having a two-tier system in the future, where EU citizens and their families may get preferential treatment to those from the rest of the world?

Martin Hoare: I personally think that all people should receive overall fair treatment. I think that currently the family members of EU citizens have an easier set of requirements to satisfy objectively. I find that the Home Office enforces that in the most severe and restrictive way possible. I can see no grounds of fairness to suggest that everybody should go down to the lower level of protection that applies under the purely English rules.

[David Duguid]

Q Would you advocate for immigrants from outside the EU to have the same level of access to their families, for example?

Martin Hoare: Yes, I would. From time to time, those advocating support for the English rules and litigating on behalf of the British Government suggest that the English rules are somehow compatible with European principles.

[David Duguid]

Q Sorry, when you say English rules, do you mean UK? I just wanted to be clear, before my Scottish National Party colleagues—

Martin Hoare: Yes, the UK rules—sorry. I just did not want to include your nation with such rules, that is all. It was out of courtesy to your nation that I was making that distinction. Presently, people who are advocating for the British Government contend that the rules are compatible with the European provisions. They are clearly not, and the proposal is to reduce the rights of everybody.

Hilary Brown: It would be difficult for the UK to justify why they felt it was appropriate to run a two-tier system. It needs to be simplified, to be one system and to be equally applicable to everybody.

[David Duguid]

Q Okay, thank you.

[Stuart C. McDonald]

Q The White Paper does not propose applying the same rules to everybody, does it?

Hilary Brown: No, it does not, but that does not mean to say that we should not make some progress towards attempting to simplify it so that it does apply equally to all.