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

Kate Green Excerpts

Thursday 14th February 2019 Public Bill Committees

[The Chair]

Thank you for that explanation.

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

Q Can I ask what information your members have had and what knowledge they have about any checks that they will be expected to make on EU nationals’ right to work after Brexit?

James Porter: That is certainly not clear in my head at the moment. My current understanding is that if a deal is reached, nothing changes until 2021. Is that right? If there is a deal, nothing changes, as far as I am aware. If there is not a deal, my understanding is that currently there will be a three-month rule and then people will have to apply to stay.

[Kate Green]

Q Your understanding is that they will be able to work in the first three months without any documentation, but then they will need to apply.

James Porter: Yes.

[Kate Green]

Q How will your members know whether somebody is in their first three months or whether they have already been here for three months working for another employer?

James Porter: They will not.

[Kate Green]

Q Does that worry your members, or would it worry them if they thought about it?

James Porter: If I had crop to pick and someone came, unless I was compelled to make background checks, I do not see why it should be up to me to try to find out whether they were in their first three months of employment.

[Kate Green]

Q Your members do not make background checks as things stand, because people are here under free movement rules.

James Porter: We do not need to. We do need to check that they are from the EU, so we check ID cards and where they have come from.

[Kate Green]

Q But you do not need to check their right to work after that.

James Porter: No.

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

Q Most of my questions have been answered, but I have a couple of short ones. The Bill seeks to end free movement. Is it the NFUS position that continuing free movement would be a better course of action?

James Porter: Yes.

--- Later in debate ---

[Nick Thomas-Symonds]

Q Professor Peers, you have written a lot about free movement, including that of UK citizens in the EU27. A former constituent of mine contacted me recently about the situation in Austria; the Austrian Government have just published their scheme for expats, and it is €210 per person for a long-term residence permit, which seemed to me quite an extraordinary amount of money. Can you set out your concerns for UK citizens in the EU27 during this period?

Professor Peers: Yes. There are a number of concerns. First, it would have been better either to have a ring-fenced agreement covering people on both sides and cutting out that part of the withdrawal agreement, which is not particularly controversial, or to have EU legislation similar to the social security proposal that has already been tabled, which unilaterally and uniformly protects UK citizens’ rights across the whole European Union. For whatever reason, the Commission did not go ahead with that, but it would have been far better to have done that.

What we have instead is different countries doing different things. Some aspects of UK citizens’ rights in the EU27 are governed by EU law on non-EU citizens, and long-term residence is an example of that, but there are parallel national laws on long-term residence too. I do not know the details of the Austrian law offhand, but the EU law on long-term residence has case law saying that you should not impose disproportionate fees, so someone might want to challenge the €210 as a disproportionate fee. However, if that is a national law on long-term residence, you do not have an EU law argument about it, so there will be a lot of non-uniform degrees of protection of UK citizens.

It would be better to have standard rules, because a lot of those citizens would be looking at national long-term residence; EU long-term residence is not necessarily used that much. Some of them will face the difficulties of paying high fees. There may of course be other difficulties in applying. There may be earnings thresholds, or other criteria to be met in relation to health insurance or being employed and so on, to get long-term resident status under national law. Those could be difficult to meet.

There might be issues to do with family reunion. Certainly if the family member has not been registered yet, or if they come after Brexit day, different rules might apply to them. It might be quite challenging to bring families in, or have them to stay. If there is a separation or divorce that could raise issues, and people would be in a more difficult position than they would under EU legislation.

Anyone who does not yet have the right to long-term residence could be in an even more difficult position, depending on how restrictive national law is in relation to how they qualify for the right to stay. Would they be given something like pre-settled status, which we will have in the UK, on the basis that they are on their way to getting long-term resident status, or, instead, a short-term permit? It might be that that could not be renewed, or could not be renewed on the same basis, or would not let the person change jobs, or would not let a student look for work—all things that people would have as an acquired right if the withdrawal agreement is passed.

People who are not registered under the national system for registering foreign citizens will have difficulty in any event. They might have difficulties for that reason alone with qualifying under a national system of getting residence permits. If they do not get a residence permit at some point, their life will be more difficult in terms of travel, access to benefits or whatever it might be.

Those points are a broad indication. They will be different in each country and the details will differ, but they give a broad idea of the sorts of problems UK citizens might face.

[Kate Green]

Q I would like to follow up on Afzal Khan’s questions about social security. I think you said that one way in which the Government might want to use the powers in clause 5 would be to mirror any changes that the EU might make, to ensure that there would be a continuing set of reciprocal arrangements. However, the explanatory notes to the Bill say:

“This clause allows the Government (and/or, where appropriate, a devolved authority) to make regulations to implement any new policies regarding co-ordination of social security.”

Do you think that might be too broad a power for the Government to have?

Professor Peers: It does seem like an awfully broad power, yes. It would be useful, I think, for Parliament to insist on some sort of statutory limits or guidelines in primary legislation as to how the Government might use their power. One of them could be a requirement, or a push, at least, towards mirroring whatever the EU ends up with, since we know the plan is to have EU legislation on this issue, and it does seem likely to go through, as member states wanted it. That would be one way forward.

I do not know whether there are other issues as well, that Parliament might want to constrain the Government on, somewhat; but it seems like a reasonable argument, that the Government should not have unlimited powers and some constraints should be set by primary legislation.

[Kate Green]

Q The explanatory notes also suggest that regulations could be made under the clause to make different provision for different categories of persons. Do you have any views on that power, and how Ministers might exercise it, and any constraints Parliament might think of to be placed on that?

Professor Peers: I imagine that you might end up with different social security treaties being negotiated with different countries. There are not always arrangements with other countries to uprate pensions, for instance, whereas with the EU, at least until now, it has been the case. I suppose some treaties would cover that and some would not. It makes a big difference over time to pensioners who are not getting their British pensions uprated. Again, that might be something you want to address in the legislation, to specifically require pensions to be uprated, for instance.

[Kate Green]

Q For those who have contributed to the British social security system and then have expectations as pensioners?

Professor Peers: Yes.

[Kate Green]

Finally, what do you think will be the impact on labour market mobility of the possibility of different social security co-ordination arrangements in the future?

Professor Peers: People are always going to ask themselves, “What are my pension issues if I move to another country?”—or, of course, if they move to a different job in the same country. Moving from a better pension to not such a great pension might counteract any pay increase someone might get, for instance. People have to think about that. Perhaps people in their 20s do not do that so much, but as we get on we start to think more about these things.

[Kate Green]

Q Those who are more highly paid, and therefore expect a higher pension, might think about it more as well.

Professor Peers: Of course that is a possibility, although I am sure that people on every pay level are concerned about pensions. It is bound to factor into people’s considerations, although it is hard to quantify. I am sure that someone has studied it in detail, but I have not. However, it will undoubtedly be a factor, and it is one reason why the first regulation the EU ever adopted, in 1958, was on social security co-ordination. That was precisely the reason why they did it—plus, it was a treaty that was ready to be copied into regulation. There has been so much case law on it over the years because of the importance of social security co-ordination to labour mobility.

[Stuart C. McDonald]

Q Can I ask about clause 2, which relates to Irish citizens? I think everyone welcomes the inclusion of the clause. However, we heard evidence earlier this week that there are perhaps other issues for Irish nationals that we should cover, and that the clause does not go far enough to protect their position. Do you have any thoughts on that?

Professor Peers: First of all, I agree that it is useful to have the clause there. I think there was a general assumption in some quarters that we did not need to say anything on Irish citizens, because they were covered, although my colleague in Leicester, Bernard Ryan, questioned that over the years. It is now there in the legislation, and it is useful to have.

However, having looked at that recently, I think the question of family reunion might arise. Are Irish citizens covered by the general appendix EU rules on family reunion as the Government intend to implement them in event of no deal, where there would be a shorter period in which the EU rules on family reunion apply? Does their being covered by those rules depend on whether they apply for settled status? There might be an answer to that that I have missed, but that question certainly arose for me.

That is not just about people who have non-EU citizens as family members, about people who have EU citizens as family members. After a no-deal Brexit, EU citizens would be coming here on a limited basis, according to the Government’s plans on limited three-year permits. Someone might be in a better position if they are here as a family member, so it would be useful to know whether such people would end up being covered as family members. Perhaps that will be clearer when we get further changes to the immigration rules to implement the no-deal plans. I have checked this afternoon, but I have not seen that implemented yet. It would be useful to see it.

--- Later in debate ---

[Maria Caulfield]

Could you give me an example?

Professor Smismans: In some countries, it will create problems in getting access to public services if people are not registered. Under EU law, they could be there for three months without registration. Some countries say that after those three months, you have to register. If you have not done that, and you want access to welfare benefits, they would say, “Well, you haven’t registered.”

It has always been the case that countries could do that. The UK could have done that, but has not done that. Having people who are not registered now creates a difficult problem for the future, because non-registration will have the immediate effect that you become illegal. Even in the EU, it is not, “If you haven’t got registration, you aren’t legal.” You might not have access to certain services, but you are not illegal and you are not deported on that ground.

[Kate Green]

Q May I ask you about the provisions in the Bill relating to social security? What are your views about the powers in clause 5?

Professor Smismans: They are very wide. These are the essential rights of people who have built up pension rights, sometimes in several countries. EU rules allow that rights built up in several places can be aggregated. We do not know what will happen with that. If there is a withdrawal agreement, it will be guaranteed. If there is no withdrawal agreement, we do not know. The promise so far, which is not yet set out in a legal text, is that rights built up until now will still be recognised, but rights built up after Brexit will not be recognised. That is obviously a problem. You are saying, “Okay, you have built up these rights until now; be happy with that,” but that means that people cannot move any more. If I have built up pension rights here, having been told, “We will recognise them and we will recognise the pension rights you have built up in Belgium, France and Italy,” but from now on I am told, “We will recognise only what you do in the UK”, that means that I cannot move back to Belgium if I want to or if I have to go and take care of my mother. I cannot do that, because my pension rights will have been building up until this moment in time.

That is why there should be limitations on how these rights can be affected and undermined by secondary legislation. Ideally, this is set out in the withdrawal agreement; it should be guaranteed in primary legislation. The withdrawal agreement is important for this issue, because it includes elements of co-ordination between countries. You can never resolve it unilaterally, because there are always aspects of co-ordination of information. You have to know what has been done on the other sides. And actually there are already proposals for statutory instruments that say, “If we don’t get the information from the other country, we are not obliged to take these rights into account.” There are already statutory instruments—proposals for that—that are undermining our rights.

There is a tendency in the first proposal for statutory regulation to forget about the 3 million already here. It is all set out: “We are going to change the rules on free movement for the future.” It is a kind of generic approach: forget about the 3 million who have built their lives on these rights. So there are no guarantees there. These guarantees have to be set out in primary legislation.

[Kate Green]

Q The statutory instruments that you are talking about are statutory instruments that the Government have already laid under the European Union (Withdrawal) Act 2018. That is correct, is it not?

Professor Smismans: Yes.

[Kate Green]

Q That would give the Government the opportunity to demand information or make assumptions about your status if you could not supply that information.

Professor Smismans: Yes, exactly.

[Kate Green]

Q Given that the Government are already laying statutory instruments under the European Union (Withdrawal) Act 2018, what further concerns do you have about the additional provisions in this Bill?

Professor Smismans: This goes on the same line as what the withdrawal Act allows them to do. It is not particularly worse than the powers given there, but it is not giving any guarantees.

[Kate Green]

Q So it does not make the situation better and it may be making it even more punitive.

Professor Smismans: Yes, it makes things worse, in that the Bill obviously removes the free movement rights in their entirety. On social security, it does not remove them as such, but it gives the power to do that under secondary legislation. So in a way that is less radical than the first aspect of the Bill, but in practice it may well come to the same thing.

[Kate Green]

Q Do you have any concerns about the power that this Bill would confer on Ministers to make different provisions in relation to social security for different categories of European economic area or other nationals?

Professor Smismans: Yes, the Bill explicitly says that. The positive interpretation might be, “Well, actually, we needed that to say we have to distinguish between future immigration and those people who are already here.” The practice of the first instruments that are adopted is that actually they do not make that distinction, so it can be used in many different ways. That is why our proposal is that if there is such delegation, at least there has to be a protection for people who are already here saying that their rights cannot be removed by secondary legislation.

[Mrs Kemi Badenoch (Saffron Walden) (Con)]

Q Professor, as part of the3million, you have had frequent meetings with Government in terms of designing the settled status scheme. Can you tell us how effective you think the Government and the Home Office in particular were in engaging with stakeholders?

Professor Smismans: There has been engagement with stakeholders on the practical implementation, for sure, which has been useful. I think it has been more difficult to have any influence or feedback when civil society has said, “Well, actually, our rights have to be guaranteed; it’s not just an issue of practical implementation.” That has been far more problematic. There has been an involvement, but given the state of the legislation and the rules, clearly civil society has not been as effective as it hoped.

--- Later in debate ---

[Afzal Khan]

Q Knowing what we know about where we are with the current immigration system, do you think that it needs to be reviewed before we add another 3 million or 4 million EU citizens? Would it help to streamline, improve and simplify it?

Joe Owen: Yes. This is a big opportunity to change the way the immigration system works, but clearly there is a trade-off between time and the level of ambition for what you can change. As it stands, the system would need to be up and running in less than two years. Clearly, time is a big constraint. That is one of the reasons why a lot of what sits at the core of the policy in the White Paper is the points-based system that existed before 2010. There were then a series of add-ons, such as the cap, which this removes, and stuff around the resident labour market test. Those things that were bolted are being stripped back.

The fact that there is so little time means that the level of ambition has to be curtailed in terms of what you can do. You would expect that changes will be needed over the longer term; we will not be done and dusted in December 2020. Such things as the promised review of the sponsorship system for employees might have to be done in the longer term. One of the things that we are looking at is whether there needs to be a bigger review of how the immigration system works, and the structures and processes in the Home Office. That was one of the things announced by the Home Secretary in response to the DNA testing issue.

One of the areas that is not touched on, and which will likely need a review—this has definitely been a theme in the evidence of all your previous panellists—is how enforcement works. You have heard from all the panellists since I have been here about the question of settled status, and what happens to the people who do not have settled status at the end. It is almost certain that quite large numbers of people will not.

It would be heroic if the Government managed to get to 95%. I think the dreamers scheme in the US, which was kind of similar in terms of the application process and who was eligible, got about 43% of people who were eligible. I think we did something in the UK around family leave to remain in the early to mid-2000s where we got about 20% coverage. Even if we were to stretch to 95%, which would be a really good job by the Home Office, you are talking potentially about nearly 200,000 people who do not have documentation. How does the enforcement system adapt to take into account the fact that that is just a reality we will be dealing with?

The Home Office will need to deal with the fact that there will be people for whom it does not have paperwork, and who technically may have no legal right to stay, if they did not apply within the time period. I think most people in the UK would recognise some kind of moral entitlement to stay if someone has lived here for 20-odd years. How the enforcement system adapts to that will be an important challenge.

[Kate Green]

Q Can I ask you about the provisions in the Bill that relate to social security co-ordination? Clause 5, again, gives the Government Henry VIII powers to modify the social security co-ordination arrangements, including modifications to entitlements that people may currently have in primary legislation. You have spoken a bit about how immigration rules have been used to modify primary legislation. What is your view of those Henry VIII powers?

Joe Owen: I have to admit that I am by no means an expert on social security, but this is part of a broader Brexit phenomenon. The level of uncertainty of what sits ahead, and the need to pass legislation, means that the Government have to take broad powers in certain areas to cover all aspects of a no-deal scenario. Whether there is the necessary scrutiny of that, and the necessary security as to the powers being used properly, is a different question, but it would in some cases be quite difficult to get away from taking broad powers on Brexit-related issues, unless the Government were to be quite forward-looking about what they planned to do.

In short, it is kind of unavoidable that there are some quite broad powers in the Bill, but there is a serious question about whether there is the right level of scrutiny, and what more Select Committees, for example, could do to make sure the powers are used properly.

[Kate Green]

Q Is there a difference when delegated legislation is used to remove rights currently enjoyed by people who are already here, and when it is a matter of the application of those rights in future?

Joe Owen: Most people would recognise a difference between those two. There is a question as to how to manage that in legislation. I am not entirely sure how one could go about that at this point.

[Kate Green]

Q I guess it would be possible to constrain the scope of what could be amended in delegated legislation more tightly than the Bill does.

Joe Owen: Yes, that is certainly an option.

[Jack Brereton]

You have mentioned the constraints of time, which, obviously, are potentially quite challenging. If we were to leave with a no-deal scenario on 29 March, and the Bill was in place by then, how do you think implementation on the ground would go? Would there be challenges to get things running in that timeframe?

Joe Owen: There are two things when it comes to no deal; there is the settlement scheme for EU citizens who are here before 29 March, and then there is the temporary leave to remain scheme for those who arrive afterwards. The first system is up and running and being trialled. While rights change in certain areas as a result of there being no deal, the process in the system is the same—so, credit to the Home Office for having a new technology system up and running and being trialled within two years. Most people, looking at Government IT projects, would say that was pretty impressive. Obviously it still has a long way to go before it can be said to be complete.

--- Later in debate ---

[Alok Sharma]

Q So it would not change behaviour.

Kalba Meadows: It may well change behaviour in that people would have no choice. But it is a very difficult thing to even contemplate.

[Kate Green]

Q Very difficult to do what?

Kalba Meadows: To move back to the UK.

[The Chair]

Colleagues, if there are no further questions, I thank our two witnesses for the evidence that they gave the Committee. We have now reached the end of our oral evidence sessions. The Committee will next meet on Tuesday 26 February, not next week, under the chairmanship of Mr Graham Stringer at 9.25 am to begin line-by-line consideration of the Bill. I remind Members that the deadline for amendments to be considered for that sitting will be the rise of the House next Thursday on the 21st, so any amendments must be tabled by then.