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

Kevin Foster Excerpts

Committee stage & Committee Debate: 4th sitting: House of Commons
Thursday 11th June 2020 Public Bill Committees

[The Chair]

I remind the Committee that with this we are discussing the following:

Amendment 3, in clause 4, page 2, line 34, leave out “, or in connection with,”

This amendment would narrow the scope of the powers provided to the Secretary of State in Clause 4, as recommended by the House of Lords Delegated Powers and Regulatory Reform Committee in connection with the equivalent Bill introduced in the last session of Parliament.

Amendment 20, in clause 4, page 2, line 35, leave out “this Part” and insert “Schedule 1”

This amendment seeks to limit the scope of the power in Clause 4 to matters concerning the ending of retained EU law rights that currently preserve free movement and immigration-related rights.

Amendment 21, in clause 4, page 2, line 35, at end insert—

‘(1A) The power to make regulations under subsection (1) may only be exercised within the period of one year from the day on which this Act is passed.

(1B) Regulations made under subsection (1) shall cease to have effect after a period of two years from the day on which this Act is passed.”

This amendment would restrict the use of the Henry VIII powers contained in Clause 4 to a period of one year from the date of the Act being passed; and would prevent any changes to primary legislation made by exercise of these powers having permanent effect unless confirmed by primary legislation.

Amendment 4, in clause 4, page 3, line 6, leave out subsection (5).

This amendment would narrow the scope of the powers provided to the Secretary of State in Clause 4, as recommended by the House of Lords Delegated Powers and Regulatory Reform Committee in connection with the equivalent Bill introduced in the last session of Parliament.

Amendment 15, in clause 4, page 3, line 8, at end insert—

‘(5A) The Secretary of State may make regulations under subsection (1) only if satisfied that the regulations would have no detrimental effect on the children of EEA and Swiss nationals resident in the United Kingdom.

(5B) Before making regulations under subsection (1) the Secretary of State must lay before Parliament, and publish, a statement explaining why the Secretary of State is satisfied as mentioned in subsection (5A).”

Amendment 22, in clause 4, page 3, line 8, at end insert—

‘(5A) Regulations under subsection (1), in relation to persons to whom the regulations apply under this Act, shall be made in accordance with the following principles—

(a) Promotion of family life, particularly that between children and their parents and that between partners;

(b) That persons in the United Kingdom should have a right of appeal to the First-tier Tribunal against any decision to refuse leave remain, to curtail leave to enter or remain or to make a deportation order;

(c) that where leave to remain is given—

(i) on account of a person’s long residence in the United Kingdom; or

(ii) to a person whose continuous residence in the United Kingdom includes five years of that person’s childhood; or

(iii) to a child who has lived in the United Kingdom for a period of seven continuous years;

that leave is given for an indefinite period;

(d) that leave to enter or remain given to a person for the purpose of establishing or continuing family life in the United Kingdom is not subject to a condition restricting work, occupation or recourse to public funds; and

(e) ensure that no change to immigration rules or fees is made—

(i) unless sufficient public notice has been given of that change to ensure any person affected by the change who is already in the United Kingdom with leave to enter or remain has reasonable opportunity to adjust their expectations or circumstances before the change takes effect; or

(ii) that would require a person given leave to enter or remain for the purpose of establishing or continuing family life in the United Kingdom to satisfy more restrictive conditions for the continuation of their stay than were required to do so at the time the person was first given leave for this purpose.”

This amendment seeks to ensure that exercise of the delegated powers in clause 4(1) is guided by certain principles.

Amendment 12, in clause 8, page 5, line 40, at end insert—

‘(4A) Section 4 and section 7(5) expire on the day after the day specified as the deadline under section 7(1)(a) of the European Union (Withdrawal Agreement) Act 2020.”

[The Parliamentary Under-Secretary of State for the Home Department (Kevin Foster)]

It is a pleasure to serve under your chairmanship this afternoon, Mr Stringer. This group of amendments raises important issues about the scope of the regulation-making power in clause 4. I would like to thank the hon. Member for Cumbernauld, Kilsyth and Kirkintilloch East for speaking to his amendments and for the effort he has put into them. I know that he has a strong interest in the use of the power in clause 4, as he had when the Bill was previously in Committee, in 2019. However, despite the explanations given to him then, he appears still to be misinformed about how the Government are planning to use this power, and I hope that my response will help. A lot has been said today and in the evidence sessions about this power granting Ministers a blank cheque. That is not the case, and if you will permit me, Mr Stringer, I will set out how we intend to use the power and respond to the hon. Member’s amendments as I do so.

The power is intended to enable three broad things via regulations. The first is to ensure that our laws operate coherently once freedom of movement ends and the relevant provisions in schedule 1 are repealed. There are references across the statute book to EEA citizens, their free movement rights and their status under free movement law, which need to be addressed through regulations made under this power.

For example, regulations made under section 126 of the Nationality, Immigration and Asylum Act 2002 list the documents that must be provided in support of various types of immigration application. One type relates to applications under the Immigration (European Economic Area) Regulations 2016, which implement the free movement directive. That reference needs to be removed because those regulations are revoked by schedule 1, so there will no longer be applications under them. It is therefore important that the power is wide enough to ensure that all references to the EU and free movement rights in primary and secondary legislation can be amended appropriately as a consequence of, or in connection with, the ending of free movement.

That is why the Government do not and cannot accept amendments 2 and 3, as they would prevent us from meeting our manifesto commitment of ending free movement and introducing a new, fairer points-based immigration system. We also do not want the provision drafted so narrowly as to lead to challenge and uncertainty about whether an amendment is “appropriate” or “necessary” “in connection with” or “in consequence of” the end of free movement. Such an amendment would enable those who oppose the principle of ending free movement, which I accept the Scottish National party does, to seek to achieve that through the courts by challenging these regulations, since they were not able to achieve it at the ballot box in December.

The second reason that the power is important is to align the immigration treatment of EEA and non-EEA citizens for those who arrive from 1 January 2021, after the end of the transition period. That will enable us to deliver the new global points-based immigration system under which everyone is treated equally—for example, by removing EEA citizens’ exemption from the immigration skills charge. We also intend to use the power to align the rules on access to benefits, so that EEA citizens and non-EEA citizens are treated the same under the new global points-based system. It is worth me clarifying that the detailed requirements for the future points-based immigration system will be set out in the immigration rules made under the Immigration Act 1971 and subject to parliamentary scrutiny of those changes, not through regulations made under clause 4. Control has been taken back by Parliament and will be there.

Thirdly, the power will enable savings and transitional provisions to be made—for example, to protect EEA citizens’ existing appeal rights under the EEA regulations. That is in addition to the protections to be delivered for EEA citizens resident in the UK by the end of the transition period through statutory instruments, which the Government will bring forward under the European Union (Withdrawal Agreement) Act 2020.

I understand that clause 4 is a complex, technical power. That is why the Government have already produced information to help the Committee understand the power, through the factsheet published on gov.uk. I have also given examples of changes that we intend to make under the regulations. It is absolutely right that Parliament pays close attention to delegated powers such as these. I noted the recommendations of the Delegated Powers and Regulatory Reform Committee in the report on the Bill in the previous Parliament.

Amendment 4 would remove the provision to make changes in relation to fees and charges. Regulations made under this power may only modify legislation relating to the imposition of immigration fees and charges where that is as a consequence of or connected with the provision in part 1. That enables the application of fees and charges to EEA citizens, who are currently exempt from them, such as the immigration skills charge, which is paid by the employer.

Amendments 20, 21 and 22 would further limit the scope of the regulations made under clause 4. Let me set it out again that we need this power to ensure that our laws operate coherently once free movement ends, to align the immigration treatment of newly arriving EEA citizens and non-EEA citizens from 1 January 2021, and to make relevant savings and transitional provisions for resident EEA citizens that cannot be made under powers in the European Union (Withdrawal Agreement) Act 2020.

Amendment 20 would prevent the regulations from being used to make amendments that are in consequence of or in connection with clause 2, which protects the unique position of Irish citizens in the UK once free movement ends. I understand the queries about that point. To be absolutely explicit, we intend to use that power in a very limited way to amend provisions in the Immigration Act 1971 that cover entering the UK via the common travel area. We will not use them for wider changes. As I said this morning, the Belfast agreement is fundamental international law, as well as a fundamental part of our constitution.

Amendment 21 is intended, first, to sunset the power in clause 4 by setting a deadline for its use of one year after the Bill is passed and, secondly, to ensure that regulations made under the power expire after two years. As the hon. Member for Cumbernauld, Kilsyth and Kirkintilloch East is, I suspect, aware, regulations will need to be made under clause 4 to coincide with the repeal of free movement law by part 1. We have endeavoured to ensure that they make all the changes required by primary and secondary legislation, to come into effect by the end of the transition period. Beyond that, I assure him that we would make further changes under the power only if that were required, and Parliament will be fully engaged whenever it is used.

The power cannot be used to make amendments relating to the consequences of exiting the EU more generally; it can be used only in consequence of or in connection with ending free movement and the clarified status of Irish citizens. Changes cannot be made indefinitely, as they would not be in consequence of or in connection with that purpose. For example, the powers cannot be used to amend future primary legislation or general immigration policies.

The second limb of amendment 21 provides that any regulations made under clause 4 would expire after two years. That would mean that the legislation that had been amended reverted to its former state, creating confusion for the public and leading to a partial revival of elements of free movement, which I suspect is the outcome that the hon. Gentleman is partly hoping for. This is not an outcome that we can accept.

Amendment 22 would require that regulations made under the power in clause 4 complied with a specified set of principles. It would have the effect of continuing to treat newly arriving EEA citizens differently from non-EEA citizens. That is not consistent with establishing a new global points-based immigration system focused on the skills and contributions that people have to offer the UK, not where their passport is from.

Amendment 12, which was tabled by the hon. Member for Torfaen (Nick Thomas-Symonds), is also intended to sunset the power in clause 4 by setting the end date for its use as the day after the end of the grace period, on 30 June 2021, by which time EEA citizens and their family members resident in the UK by the end of the transition period must have applied for status under the EU settlement scheme unless, as we constantly repeat, there are reasonable grounds for missing the deadline.

I hope that I have reassured hon. Members concerning the important limitations on the use of the power in clause 4. I emphasise that it cannot be used to make amendments that relate to the consequences of exiting the EU more generally, but only in consequence of or in connection with ending free movement and the clarified status of Irish citizens provided by clause 2.

We will endeavour to make all the changes required to primary and secondary legislation in the forthcoming regulations to be made under clause 4 later this year. However, should we identify the need to make further regulations related to part 1, it is important that we have the power to do so, subject to the full scrutiny and approval of both Houses.

When a power to make regulations expires, so do any regulations made under it, so if the amendment were passed legislation that had been amended would revert to its former state, creating confusion for the public and leading to a partial revival of elements of free movement, which may have been the intention. However, that is not an outcome that the Government can accept.

Amendment 15, which was tabled by the hon. Member for Stretford and Urmston, would ensure that children of EEA and Swiss citizens resident in the UK were not adversely affected by the ending of free movement rights. She asked specifically about numbers, and I had an opportunity over the break to get the figures for the period up to 31 March 2020—they are published quarterly. Of the under-18s who have applied to the European settlement scheme, and where a decision has been taken, by 31 March, 261,880 were granted settled status and 150,940 were granted pre-settled status. That compares with just 20 refusals of applications from applicants aged under 18. Those refusals may well be on grounds purely of eligibility—that is, not having proof of living within the United Kingdom.

Given the hon. Lady’s specific query, I thought it would be helpful to give that clarity. It is not possible to say exactly how many people may be eligible, because free movement rights and rights relating to those who become eligible to apply to the European settlement scheme still operate up to 31 December. It is impossible to say exactly who will arrive tomorrow, for example, and be entitled under the withdrawal agreement to apply to the European settlement scheme. I hope that gives her some reassurance on where we are. It is worth saying that the overall level of applications to the European settlement scheme is now over 3.5 million and the number of decisions taken is over 3 million, which puts the numbers we are talking about into context.

Amendment 15 would create a two-tier system of family migration, with one set of requirements for the children of EEA and Swiss citizens and another for children of non-EEA citizens. It would lead to EEA citizens potentially being given preferential treatment inconsistent with the new points-based immigration system and with our aim of having a new single approach to migration rules, regardless of where a passport comes from.

The Home Office has, as the hon. Lady touched on, a very clear statutory obligation to take into account the need to safeguard and promote the welfare of children in the UK when carrying out immigration functions. That extends to all children, not just the children of EEA or Swiss citizens. This is contained in section 55 of the Borders, Citizenship and Immigration Act 2009. That, together with article 3 of the UN convention on the rights of the child—part of international law, as she pointed out—means that consideration of the child’s best interests must be a primary consideration in immigration decisions affecting them.

The amendment could create a separate and preferential family migration system for the family members of EEA or Swiss citizens compared with the family members of non-EEA citizens. The proposed condition under clause 4—that the Secretary of State is satisfied that there would be no detrimental impact on the children of EEA or Swiss citizens—could lead to non-EEA citizens with children and the children themselves being treated less favourably for no reason other than their nationality and with no justification for that, given that the United Kingdom has now left the European Union. This is not a basis on which a new global immigration system can be founded.

The Bill’s core focus is to end free movement. The design of the new points-based immigration system will be developed consistent with our international and domestic obligations to safeguard and promote the welfare of children. For that reason, as set out in our published policy equality statement on the immigration measures in the Bill, we have committed carefully to consider all equalities issues, including the impact on children, as these policies are being developed, but not on the basis of a two-tier approach between non-EEA and EEA children.

It is important to debate the appropriate use of delegated powers, and I welcome this, but the Government are committed to ending free movement now that we have left the EU and this clause is an essential part of delivering that. It will be used to deliver a clear and coherent statute book and level the playing field for future migration by removing the preferential treatment of EEA citizens and their family members under EU freedom of movement rules.

In future, the UK’s immigration system will be firmer, fairer and global, rather than one based on where someone’s passport comes from. I suspect that I might not have been able to fully reassure Opposition Members on the power under clause 4, but I ask them not to press their amendments, which the Government cannot accept.

--- Later in debate ---

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

I, too, endorse the speeches we have heard in relation to this amendment. I only want to make two points to the Minister. First, the long delays in processing asylum applications and then appeals is, I think we can agree, a real concern for everybody in this House. The problem with having a ban on asylum seekers working is that there is very little incentive for the Home Office to make rapid progress in dealing with those cases. Indeed, given that 45% of appeals now succeed, it seems that we are taking a very long time to fail to give the chance to work to people who will ultimately obtain it.

Secondly, I want to ask the Minister a question that follows on from the one asked a few moments ago about his personal attitude towards lifting the ban on asylum seekers’ right to work. In the last Parliament, the previous Home Secretary, the right hon. Member for Bromsgrove (Sajid Javid), undertook to carry out a review of the policy and to give consideration to whether it needed to be revised. I do not think we ever heard the outcome of that review. It would be helpful to know whether the Home Office continues to conduct that review, when we might hear the outcome of it and whether evidence to support such a review is being sought from civil society and from parliamentary colleagues who might wish to submit ideas. It has been a long time since that commitment was made to the Home Affairs Committee, and it would be good to hear the status of that review.

[Kevin Foster]

I could make this a very quick response by saying that EEA citizens’ asylum claims are inadmissible, but given the constructive nature of Opposition Members’ speeches, I will respond more fully than the strict wording of the amendment allows me to. To my knowledge, there is literally no one with an outstanding asylum claim from an EEA country because they are inadmissible and therefore would not have to wait six months for a determination.

To be clear, our rules on the inadmissibility of asylum claims from EU citizens derive from the so-called Spanish protocol—part of the treaty of Amsterdam, dealing with this specific issue—which allows EU member states to treat an asylum claim by a citizen of another EU country as automatically inadmissible, unless exceptional circumstances apply. Those will, by their nature, be very rare. Claims from EEA citizens who are not part of the EU are considered by the UK, but on the basis that they are likely to be clearly unfounded. All EEA citizens, including those not in the EU, are considered to be from safe, democratic countries and are highly unlikely to suffer a well-founded fear of persecution or serious harm there. For those reasons, and because we do not foresee a change in these circumstances given the nature of the countries concerned, we intend to continue our policy on inadmissibility for EU citizens and rules regarding EEA citizens post the transition period. As a consequence, amendment 13 would be inconsistent with our broader policy on asylum claims from EU and EEA citizens.

Turning to Members’ wider remarks, our current policy allows asylum seekers to seek permission to work in the UK if their claim has been outstanding for 12 months through no fault of their own. Those permitted to work are restricted to jobs on the shortage occupation list—to use one example cited by the hon. Member for Coventry North West, a doctor—which is based on expert advice from the independent Migration Advisory Committee. We have recently commissioned the MAC to advise us on the shortage occupation list under the new points-based system. As Members will know, the required skill level is going from RQF6, graduate, to RQF3, A-level, which will potentially expand the number of posts that are available. Given the type of countries and education systems, it is likely that we will have more, for example, skilled chefs, who would be considered to be at level RQF3 and not RQF6.

[Holly Lynch]

I am grateful to the Minister for the constructive tone of his response. We heard in evidence from the Migration Advisory Committee earlier this week that there is quite a significant delay in determining which jobs are on the shortage occupation list. We may well have skills that could be put to good use but have not yet found themselves on that list. Is there not a more dynamic way that we can have another look at that?

[Kevin Foster]

I appreciate the sentiment. Traditionally the MAC has only operated on commission, when the Home Secretary or the Immigration Minister asks it to look at something. We are in the process of appointing a new chair of the Migration Advisory Committee, and we are looking at how it can work on a more predictable cycle. The call for evidence on the shortage occupation list is open, and with the skills threshold changing, we need to update the list for 1 January 2021. I would certainly encourage any organisations that the hon. Member is in contact with to make submissions, given the quite significant change, which will allow a wider range of practical skills, not just the purely academic skills that the list inevitably reflects by setting the bar at degree level. Senior careworker is a good example of a position that we expect to be between RQF3 and RQF6, rather than not qualifying, and it is worth remembering that that list will apply on a global basis.

Returning to the amendment, it is important to distinguish between those who need protection and those seeking to come here to work, who can apply for a work visa under the immigration rules. Our wider immigration policy could be undermined if there was an incentive for individuals to try to bypass the work visa rules by lodging wholly unfounded asylum claims in the United Kingdom.

Secondly, unrestricted access to employment opportunities may also act as an incentive for more people to choose to come here illegally, rather than claiming asylum in the first safe country they reach, particularly within the European Union. We cannot have a policy that increases that risk, even though it has to be said that clearly an EEA citizen would not be fleeing war or persecution.

[Kate Green]

I understand the fear that the Minister is expressing, but does he accept that all meta-analysis of countries that offer asylum seekers a right to work shows that they experience no increase in asylum-seeking, or no relatively higher rate of asylum-seeking, than countries that do not offer such a right?

[Kevin Foster]

As I touched on, there is some ability to work for those whose claims have been delayed for a significant period of time, but we are not satisfied, given what we have seen with past attempts to use parts of the migration system to avoid the restrictions or avoid having to come through the appropriate process to work here, that what the hon. Lady said would not be the case. We cannot readily dismiss the impact that removing such restrictions would have, nor its impact on our capacity to support genuine refugees who are in need of our protection, given that our system also has to deal with those claims that are unfounded and are more about intending to acquire a right to work in the United Kingdom.

I will take this opportunity to make it clear that I acknowledge the well expressed concerns of Opposition Members. The Government are committed to ensuring that asylum claims are considered without unnecessary delay, to ensure that individuals who need protection are granted asylum as soon as possible and can start to rebuild their lives. As the hon. Member for Halifax will know, once someone is granted asylum they are given immediate and unrestricted access to the labour market.

I heard the points that were made eloquently by the hon. Members for Coventry North West, and for Stretford and Urmston about the time that it can take to make some of these decisions. That is also a concern for me as a Minister and for the Government, because if people have a founded claim, we want it brought to a resolution as quickly as possible, so that they can move on and rebuild their lives. Similarly, if a claim is wholly unfounded or based on—if I might put it this way—inaccurate information being provided by the applicant, we want to come to a speedy decision to facilitate their removal from the United Kingdom, to ensure that our system is fair as well as firm.

The new service standard for asylum applications, which is intended to try to bring back some balance to the system, is currently being developed. UK Visas and Immigration is engaging with stakeholders as part of these plans and considering any insight that those stakeholders offer as it tries to shape a new service standard, which was touched on by the hon. Member for Coventry North West, as a start in attempting to tackle some of these issues.

Finally, the hon. Member for Stretford and Urmston asked about the review commissioned under a previous Home Secretary. We are in the process of reviewing the right-to-work policy, with officials looking at the body of evidence available. Therefore, it would be inappropriate for me to comment further until that review is complete, other than to say that that process is ongoing.

Having made those comments, the Government cannot accept the amendment and we hope that it will be withdrawn.

--- Later in debate ---

[Holly Lynch]

As the SNP spokesperson says, this group of amendments, like most of those in the previous group, continues to seek to limit the transfer of powers to the Executive and away from Parliament. We have gone over the arguments against such sweeping Henry VIII powers in principle at length, so I will not repeat those. This group largely seeks to ensure that regulations made under clause 4 are subject to the affirmative procedure, and to leave out subsection (6).

Martin McTague from the Federation of Small Businesses was I think the only witness who said in his evidence on Tuesday that he actually did see some merit in the powers in clause 4, yet when asked further, he was keen to stress that

“the Home Secretary will be answerable to Parliament about the decisions that she or he has made. That would be a way in which Parliament could ensure there was proper scrutiny.”––[Official Report, Immigration and Social Security Co-ordination (EU Withdrawal) Bill Public Bill Committee, 9 June 2020; c. 14, Q29.]

However, as the Bill stands, proper scrutiny will be missing.

As has been said, proper scrutiny is exactly what we are in the business of in this place. It is why the Government say they have thrown caution to the wind in returning to a physical Parliament when we could have been undertaking our duties from home, as is still the public health advice. If the Leader of the House is such a big fan of parliamentary scrutiny, why are we going to such lengths to avoid it with these powers? Putting changes through the affirmative procedure has to be the way forward if we are to shape legislation for the better and deliver on parliamentary democracy. That is why we support this group of amendments.

[Kevin Foster]

I thank the hon. Member for Cumbernauld, Kilsyth and Kirkintilloch East for speaking to his further amendments on clause 4. Amendments 5, 6, 8 and 9 deal with the parliamentary procedure for regulations made under the clause 4 powers, as has been outlined. The made affirmatory procedure is needed in the event that there is a short window between the Bill’s Royal Assent and the end of the transition period on 31 December 2020. This is why the provision for the affirmative procedure that the hon. Gentleman and the hon. Member for Halifax have suggested would not work. Free movement must end on 31 December at the end of the transition period, and it is important to ensure that regulations made under this power align the treatment of European economic area and non-EEA citizens who arrive in the UK from 1 January 2021.

To clarify, under the made affirmative procedure, Parliament will be asked to approve the regulations within 40 days of their being made to enable them to continue in force, so Parliament does have scrutiny of the use of this power. If either House does not approve the regulations, they will cease to have effect, but subsection (10) preserves the effect of anything done under these regulations before that point to ensure legal certainty—in essence, for someone who is granted immigration leave after applying under a rule that would come into effect on 1 January.

Using this power does not mean avoiding parliamentary scrutiny. The secondary legislation to be made under this power is still subject to full parliamentary oversight under the established procedures, although I expect the hon. Member for Cumbernauld, Kilsyth and Kirkintilloch East may actually be disappointed at just how limited and benign they end up being. It is important to debate the appropriate use of delegated powers, but the Government are committed to ending free movement now that we have left the EU, and this clause is an essential part of delivering that and ensuring that it can be done, with the new system in place, on 1 January 2021. We therefore cannot accept these amendments.

[Stuart C. McDonald]

I am grateful to the Minister for his explanation. I am not convinced that there will be a time problem between the Bill coming into force and the end of the transition period, so I insist on pressing amendment 5 to a vote.

Question put, That the amendment be made.

--- Later in debate ---

[Holly Lynch]

We are enormously sympathetic to all the points that the Scottish National party spokesperson has just made on amendment 1, but I want to focus my comments on new clause 34, which we support. It would ensure that EEA and Swiss spouses of UK nationals were not ineligible for visas because of job cuts and furloughs resulting from the coronavirus. For many families, the coronavirus crisis has already led to loss of livelihood and prolonged separation. Now, families of British citizens with EU spouses fear that they will be permanently separated if their partner cannot secure a visa because their job security has been affected by coronavirus and they no longer meet the income threshold to settle in the UK.

We feel strongly that we should at this time give families as much security as possible. In the crisis, unemployment has crept up significantly, and there are limited work prospects. A recent publication for the Institute for Public Policy Research, using data from the labour force survey, found that migrants to the UK are far more likely to be working in industries affected by the crisis, including accommodation and food services. Migrants are also more likely to be self-employed and in temporary work, which puts them at particular risk of losing income, or having diminished income, as a result of the crisis.

We can foresee a ruthlessly competitive job market in the aftermath of the crisis. The new clause seeks only an appropriate grace period for the duration of the crisis on the minimum income requirement, for those who were working hard to ensure that they met it. It seems entirely appropriate to use the expiration of the Coronavirus Act 2020, as set out in the new clause, to set that.

A constituent of mine who worked at McDonald’s needed to meet the threshold so that his wife could stay in the country, and will fall short, having been furloughed. Another woman who contacted me has a one-year-old and is pregnant with her second child. Having been furloughed, she has had to get a second job to top up her income, to meet the minimum income requirement for her partner to join her. A raft of visa issues have been exacerbated by coronavirus, and I do not think that I am being unreasonable in saying that the Government have not been particularly swift in offering clear, effective advice about the status of citizens throughout lockdown. That is causing huge additional and unnecessary anxiety for affected families at what is already a worrying time.

We have heard that there has been ambiguity about information on the Government website this week. The Home Office issued information for those on furlough, announcing on 9 June that if someone had earned enough to meet the minimum income requirement in the six months before March 2020 but their salary had dropped on being furloughed, they could still apply as if they were earning 100% of their income. That is welcome, but are the Government minded to extend consideration to those who lost their jobs entirely, and to grant them a grace period of some kind?

I should be grateful if the Minister responded to those points and considered the new clause as a way not to pile further worry and uncertainty on to families who are looking to reunite.

[Kevin Foster]

I appreciate the intention behind amendment 1, which is to create a means whereby, in future, EEA citizens would be able to join a spouse, partner or parent in the UK who was either a British citizen or settled here, without being subject to the current and established financial requirements for family migration. I also appreciate the intention behind new clause 34, which is to extend the concessions that the Government have already put in place for people subject to the minimum income requirement who are affected by covid-19 and the measures necessary to tackle it.

So that those subject to the requirement will not be unduly affected by circumstances beyond their control, a temporary loss of income during the pandemic will be disregarded. I hope that members of the Committee will appreciate that it would be difficult, and probably not appropriate, for me to go through an exhaustive list of circumstances that we might consider. However, new guidance is certainly online; I have just checked. I have summarised some of the details at least in one answer to a parliamentary question this week. It is my clear understanding that if someone is furloughed and, under their contract of employment, their potential earnings at 100% would be over £18,600—there are a couple of caveats to that, but we will stick with £18,600 for now—but the 20% furlough effect takes them below that figure, that drop in income will be disregarded. It is their substantive income that we will take into account, if they are still in their job and able to return to it when furlough comes to an end. For convenience, I will write to the Committee setting out the guidance we have given so that Members have it to hand, given the concern and interest that has been shown.

Let me be clear from the outset that the effect of amendment 1 and new clause 34 would be to create a separate and preferential family migration system for EEA and Swiss nationals and their families when compared with the situation of British or settled people’s family members who are non-EEA citizens. That is the intention of the amendments. That would lead to a perception that non-EEA family members were being discriminated against for no reason other than their nationality and would likely be regarded as unlawful for that reason, given that we have now left the European Union and the basis for having a two-tier immigration system has fundamentally been removed. I accept that Members would argue that they would like to change the rules overall, not just for EEA citizens, but the focus of the Bill is EEA citizens; it is not a general migration Bill.

[Holly Lynch]

Does the Minister not accept, however, that the difference for British citizens in EU countries is that when they took decisions to form relationships and families elsewhere in Europe, they did not envisage that the rules would change and that free movement rights would be taken away from them? The immigration rules have changed for them in a way that they have not for other British citizens in other countries around the world.

[Kevin Foster]

When anyone takes the decision to go and live abroad, there is no guarantee that migration rules will not change while they are living abroad; rules have changed over the years for British citizens living outside the EEA. However, we have put in place a longer transitional period, which I think will be to 2022—it will be nearly six years after the referendum by the time that is implemented—for those who have moved abroad on freedom of movement. Even then, they will still have the ability to move back under the family migration rules, the same as UK citizens living anywhere else.

It is also worth noting that someone who might apply for a spousal visa could also apply under tier 2. To touch on the point about potential earnings in this country, someone who qualified for a skilled work visa would be able to apply through that route if they were not able to apply through the spousal visa route. They would not, for example, be barred from settling with a UK citizen here because they were on a tier 2 visa rather than a spousal visa. Actually, under some of the provisions, particularly if they were a healthcare worker, they would potentially be quicker to settlement overall if they took that opportunity. I know that is a point that has been raised about those who might have an earning potential.

Let me go into some of the details of why we do not think amendment 1 is the right approach. The amendment seeks to replace the minimum income requirement for British citizens and settled persons to sponsor EEA 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 EEA nationals seeking entry; and taking into account any third-party support available. Let me address those in turn.

The first component—the simple ability to maintain and accommodate without recourse to public funds—would take us back to the policy that was in place before the minimum income requirement was introduced in 2012. It was partly because the test for whether a family could maintain and accommodate themselves without recourse to public funds was difficult to apply consistently that the minimum income requirement was introduced. The minimum income requirement provides certainty to all by ensuring that family migrants are supported at a reasonable and consistent level that is easy to understand. As Opposition Members have alluded to, the minimum income requirement has been based on in-depth analysis and advice from the independent Migration Advisory Committee.

I turn to some of the points about differentials across the United Kingdom. The Migration Advisory Committee found no clear case for differentiation in the level of the minimum income requirement between the UK’s countries or regions. A single national threshold provides clarity and simplicity. Data also show that the gross median earnings in 2018 exceeded the minimum income requirement in every country and region of the United Kingdom.

--- Later in debate ---

[Holly Lynch]

Once again, we are very sympathetic to the amendment. As we have already heard, it is not dissimilar to amendment 1, and it would offer reassurance to the 1.2 million British nationals who live in EU countries. Failure to implement measures such as those proposed in the amendment would show the Government’s indifference to British citizens who decided to make their homes and lives in Europe and, as in the example we have just heard, could force people to choose between loved ones there and loved ones here.

The example provided by British in Europe paints a picture of something that is affecting thousands of people and has the potential to affect thousands more in future, as family members age and their circumstances change. The amendment characterises the significance of forming laws and policies; what is discussed and decided on in this building has far-reaching implications and consequences affecting vast swathes of people in their day-to-day lives.

Until March 2022, any citizen going to live in an EU 27 country did so with the security of knowing that if they were to form a relationship and/or have a family, they would have the right to return to the UK with their partner and family, with no or very few conditions attached. That was the point I made to the Minister in challenging and seeking further clarification on some of his points about differences being potentially discriminatory against returning UK citizens and spouses from other parts of the world, not just EEA countries.

As I am sure we can all appreciate, families and relationships can be complex. The provisions afforded to British citizens through freedom of movement would allow any citizen to return to the UK with their partner and family if a situation arose where they needed to do so, potentially at quite short notice. If the UK citizen returned to be either employed or self-employed, there would be no conditions on their return; if they returned to be a student or to be non-economically active, they would have to have sufficient resources not to become a burden on the social assistance system of the UK, and have comprehensive health insurance.

In comparison, under the proposed new immigration rules, spouses and partners who wish to enter the UK with their British partner will have to meet the minimum income requirement of £18,600, and the figure is increased if the family have children. That is a wholly restrictive requirement that will severely deter families from returning and coming to the UK. In some cases, it may stop British citizens returning to the UK altogether.

As highlighted in evidence by Jeremy Morgan, the right of citizens to return with their families to their country of origin was deemed outside the scope of the UK-EU withdrawal negotiations, resulting in a serious inequality between UK citizens in the EU and EU citizens in the UK. Bizarrely, the UK Government are discriminating against their own citizens in this instance, since nationals continue to enjoy their right to return to their countries of origin with their non-EU family members.

Furthermore, EU citizens resident in the UK and covered by the withdrawal agreement also have an unconditional lifelong right to bring in family members, including non-EU members, to the UK, provided that the relationship existed before the end of the transition period. The amendment tabled would address that discrepancy.

The coronavirus pandemic has only heightened the need for the Government to carry out their basic duty to support UK citizens living abroad. What if the pandemic had occurred after 29 March 2022? As countries began lockdown, British citizens in Europe would have been faced with the unenviable choice of remaining or hastily returning to the UK. The minimum income requirement would have meant that many British citizens and their families would have been simply unable to return, despite both global and personal crises.

[Kevin Foster]

I again thank the hon. Member for Cumbernauld, Kilsyth and Kirkintilloch East and his colleagues for tabling amendment 14 and allowing us to have this discussion. As the hon. Gentleman has said, the amendment would require the Government to include in regulations, made in consequence of this Bill ending EU free movement law, lifetime rights for UK nationals to bring their close family members to the UK on EU free movement terms, where the UK national was resident in the EEA or Switzerland in accordance with EU law by the end of the transition period at the end of this year. Those family members would thereby continue indefinitely to bypass the immigration rules that otherwise apply to family members of UK nationals.

I will set out the Government’s policy for this cohort of family members before I explain our reasons for rejecting the amendment. In certain circumstances, family members of UK nationals who have resided together in the EEA or Switzerland are able to come to the UK under EU free movement law. That applies where a UK national has exercised free movement rights in the host state—as a worker or self-employed person, for example—for more than three months. That is sometimes referred to as the “Surinder Singh route”, after the relevant judgment of the Court of Justice of the European Union.

Surinder Singh family members are not protected by the withdrawal agreement, as was said. None the less, as a matter of domestic policy, the Government decided that UK nationals resident in the European Economic Area or Switzerland under EU free movement law until the end of the transition period, which is the end of this year, will have until 29 March 2022 to bring their existing close family members—a spouse, civil partner, durable partner, child or dependent partner—to the UK on EU law terms. The family relationship must have existed before the UK left the EU on 31 January 2020 unless the child was born or adopted after that date, and it must continue to exist when the family member seeks to come to the UK, for obvious reasons.

--- Later in debate ---

[Holly Lynch]

Yet again, I rise to echo a great deal of what has already been said by the SNP spokesperson. The Opposition have spoken consistently in favour of a declaratory approach, and the Home Affairs Committee has also tabled an amendment outlining its preference for that approach, so, while we have sought to deal with the scheme in front of us by way of our amendments and new clauses, should he push amendment 16 to a vote, he would certainly have our support.

In our 2019 manifesto, we committed ourselves to ending the uncertainty created by the EU settlement scheme by granting EU nationals the automatic right to continue living and working in the UK. This new declaratory system would allow EU nationals the chance to register for proof of status if they wished, but they would no longer have to apply to continue living and working in this country. This would help to secure reciprocal treatment for UK citizens living in the EU, prevent a repeat of the shameful Windrush scandal and avoid unnecessarily criminalising hundreds of thousands of EU nationals.

[Kevin Foster]

This has been a useful debate. As has been pointed out, amendment 16 would require the Government to establish a declaratory system for those eligible for residence rights under the withdrawal agreement or the immigration rules for the EU settlement scheme. That was touched on by the hon. Member for Cumbernauld, Kilsyth and Kirkintilloch East, who speaks for the SNP. It is a familiar argument we have been having over the last couple of years, and I suspect we will continue having it over the next year or two.

As the hon. Member alluded, EEA and Swiss citizens resident in the UK by the end of transition period and their family members can secure their rights here through the EU settlement scheme and through applications that are free of charge to make. So far, more than 3.5 million applications have been received and more than 3.2 million concluded, despite the efforts of one or two people to encourage people not to take part, as my hon. Friend the Member for Moray highlighted. This is with still more than a year to go before the deadline for applications on 30 June 2021 for those resident here by the end of the transition period on 31 December.

It is worth pointing out that the UK’s immigration system has long been predicated on individuals applying to the Home Office to be granted leave to enter or remain, under what we call a constitutive system. The Government have repeatedly made it clear that the constitutive system, introduced through the EU settlement scheme, is the best approach to implementing the citizens’ rights elements of the withdrawal agreements. It provides EEA citizens and their family members with clarity about what they need to apply for and by when, and with the secure evidence of their status that they need.

A requirement to apply for individual status by a deadline provides a clear incentive for EEA citizens living here to secure their status in UK law and obtain evidence of this, whereas a declaratory system, under which individuals acquire an immigration status under an Act of Parliament, would significantly reduce the incentive to obtain and record evidence of status. Indeed, the amendment does not include any requirement to do that, so in decades to come it could result in some of the issues we saw in the Windrush scandal: people with a status that has been granted, but for which there is no clear or recorded evidence.

[Stuart C. McDonald]

I am happy to take on board what the Minister says and redraft the amendment to include, for example, a £50 fine if somebody does not have a document proving their settled status. That would be much less serious than leaving them without any right to be in this country at all. Would he consider a declaratory system on that basis?

[Kevin Foster]

Well, I do not think I would. Like I said, we would be reasonable in accepting late applications—for example, if somebody did not have EU settled status because they were a child in care or mentally incapable at the time when they should have applied. I suspect that when we publish the guidance those two situations will be among the list of reasonable reasons for late applications. It would be rather odd, however, to then issue them with a £50 fine. We think it right that at some point a line be drawn, although we would be reasonable in respect of the circumstances of a late application. Certainly, in the early stages after the deadline, it is likely that the bar to cross will be fairly low, in terms of what is a reasonable reason for not having made the deadline.

As was touched on, we are up to more than 3.5 million applications already. It has been a very successful scheme. It is slightly ironic that the organisation representing EU citizens in the UK calls itself the3million, because the Home Office has already found 3.5 million and there is still a good stream of applications coming in every day, as there has been throughout the recent period. The Government are confident that we have already found many more than 3 million, and all of them are our friends and neighbours. We want them to stay, and we welcome the fact that they have taken the opportunity to apply to the European settlement scheme to guarantee their rights.

The Government are adamant that we must avoid a situation where, years down the line, EEA citizens who have built their lives here find themselves struggling to prove their rights and entitlements in the UK. That is why we have set up this system. I fundamentally believe that changing a system that is working well would have the opposite effect to that which the amendment is intended to achieve. It would reduce the certainty of a grant of status under the EU settlement scheme, which has already been given to more than 3 million EEA citizens and their family members.

The amendment provides that a right of permanent residence would be automatically acquired by EEA citizens resident here before 5 March 2020—when the Bill was introduced—regardless of how long they had been continuously resident in the UK. I do not wish to speculate about why the amendment is designed to exclude people who arrived on 6 March, or about why the Bill being introduced is a more significant moment than the end of the transition period or the day that Britain left the European Union. The general requirement under the EU settlement scheme to have been continuously resident here for five years before becoming eligible for a right of permanent residence—settled status—reflects the rights under the free movement directive, which are protected by the withdrawal agreement. To reassure hon. Members that we are talking to people who work with the EUSS, there will be efforts put in place, using the contact details provided to the EUSS, to prompt people should they be approaching the five-year period.

It is right that someone should demonstrate sufficiently long residence in the UK, in line with our current EU law rights, before being eligible for all the benefits and entitlements that settled status brings, including access to those provided by public funds. The amendment would mean that any length of residence in the UK prior to 5 March 2020, however short, would be sufficient. I do not believe that is the right approach. It is a rather strange date to choose, even though it is the introduction. Why would that be logical? It is worth explaining why someone was not covered on 6 March but was covered on 5 March. I therefore suggest to the Committee that we should not accept the amendment; we should stick with a system that is working and doing a great a job at getting those who are our friends and neighbours the status they need for the long term and the surety that brings. I therefore suggest that the hon. Member for Cumbernauld, Kilsyth and Kirkintilloch East withdraw his amendment.

[Stuart C. McDonald]

Again, I am grateful to the Minister for his reply. The amendment would not negate the good work that has happened in managing to process applications from EU nationals and provide them with digital proof of their status; it would build on it.

The Minister always insists that such a system would give people less of an incentive to apply, but that is just not the case. We would not say to anyone who was a victim of the Windrush fiasco that they did not have an incentive to apply for documentary proof. In fact, all the Windrush citizens had the right to be in this county, but that was not enough. They had to get documents, and the result of not being able to access documents was that they went through absolute hell. That is a lesson that we must learn. If we make the system declaratory, people will still apply because they need digital proof of their status to access work, social security, education and whatever else.

I do not accept the Minister’s explanation of why we retain the constitutive system. If he wants to talk about incentives, there is a big problem for anyone who misses the deadline of 30 June 2021. When they find out that they have missed it, they suddenly think, “I thought I was British, but I am not. I thought I had rights here because I had status under the old EU system, but it turns out I don’t.” Those hundreds of thousands of people will be absolutely petrified of applying to the Home Office because they have no assurance that they will be granted status here. There are vague words about being reasonable, but that did not really cut it for the Windrush generation, and this is a much bigger problem. I will press the amendment to a vote.

Question put, That the amendment be made.

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

Kevin Foster Excerpts

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

[The Parliamentary Under-Secretary of State for the Home Department (Kevin Foster)]

It is a pleasure to serve under your chairmanship, Sir Edward, and I will take on board the comments you have just made. If you will permit me, I would like to make a few introductory remarks—at the start of Committee proceedings and before we begin to debate the detail—on the purpose of the clauses.

The Bill delivers the ending of free movement of people and lays the foundations for introducing a fairer, firmer skills-led immigration system. The coronavirus pandemic is the biggest crisis we have faced in our lifetime. We need people, regardless of nationality, to continue coming together, using their skills and expertise to support the United Kingdom’s recovery.

As you will know, Sir Edward, legislating is not an academic exercise; there must be a point to it. The point is that we will introduce a new system by ending preferential treatment for EEA citizens. That will mean a system that prioritises the skills people have to offer and how they will contribute to the United Kingdom, not where their passport comes from.

The Government recognise the tremendous contribution people are making to keep vital services running during this incredibly difficult time and the dedication shown by millions demonstrates to employers the skills and work ethic we have here. Colleagues may well recall that this Bill was introduced in the previous Parliament. There have been no substantial changes to the content since it was previously considered. The only changes made are minor drafting clarifications in places and updates to the list of retained EU law to be repealed.

We remain committed to delivering a points-based immigration system that benefits the whole UK from January 2021. We will open key routes from autumn 2020, so people can start to apply ahead of the system taking effect on 1 January 2021. I want to clarify that the details of the future system will be set out in the immigration rules and not in the Bill, as is the case now for the non-EEA immigration system and has always been the case under previous Governments. The rules will be laid before Parliament later this year.

Turning specifically to clause 1, this introduces the first schedule to the Bill, which contains a list of measures to be repealed in relation to the end of free movement and related issues. The clause fulfils a purely mechanistic function to introduce the schedule.

[Holly Lynch (Halifax) (Lab)]

It is a pleasure to serve under your chairmanship, Sir Edward, as we start line-by-line scrutiny of this particularly important legislation in these highly unusual times.

I thank the Minister for his opening speech on clause 1 and schedule 1. Early in proceedings, I want to put on the record my thanks to the Clerk of the Bill Committee. He has been absolutely invaluable to all Committee members with assistance on the amendments and new clauses before us.

I also want to put on the record—I am sure that the Minister will join me, in the spirit of some early unity, as might you, Sir Edward—an expression of our disappointment about the audio arrangements for Tuesday’s evidence session. The poor sound quality was problematic not only on the day, as on occasion exchanges between Members and witnesses were seriously restricted, but for Hansard during the afternoon sitting. Colleagues worked incredibly hard to make that Hansard report available, but, unfortunately, it was not published until after 11 o’clock last night. That made preparations for today’s line-by-line scrutiny based on that evidence incredibly difficult.

That said, I turn to clause 1 and schedule 1. As the Minister is aware, we voted against the Bill on Second Reading, and the clause is the Bill in a nutshell. We will go on to discuss in great detail the various clauses and to outline our reservations at the different stages, but, ultimately, we fear that the Bill—right now, and in this form—holds none of the answers to the problems facing the country and actually stands to exacerbate them.

It is not difficult to see how implementation of the Bill could have severe consequences for the health and social care sector, a point made by several of the witnesses on Tuesday. The sector will require special consideration. The policy statement published in February on what comes after clause 1 specifically comes into effect simply saying to those earning less than £25,600:

“We will…end free movement and not implement a route for lower-skilled workers.”

Many of the people on the frontline fighting the coronavirus earn less than that. We need them now, and we need them to recover. The policy paper and the Minister state that they are looking to the domestic workforce to plug those gaps, but on Tuesday we heard from the Migration Advisory Committee—we can all see and feel this—that systemic failures underpin the problems in social care, and those will not be resolved by January. If we put a hard stop on free movement without having resolved some of those issues, there will be consequences when the country can least afford that.

Concerns about the clause fall into two distinct groups: ensuring that we have done the right thing by the some 3.5 million EU citizens who are already here under free movement rules when those come to an end, and certain groups in particular, and looking ahead to the future impact of restricted migration flows. Since the Bill’s predecessor was presented to the House in the 2017 to 2019 Parliament, the EU settlement scheme has come into effect to give European citizens who reside in the UK a pre-settled and a settled status.

The numbers coming through the scheme are positive, but there are concerns about certain groups, some with specific vulnerabilities. Eligible children in care, for example, are one cohort that we will return to under the new clauses. The impact of coronavirus on Home Office capabilities alone, in addition to its impact on applicants, inevitably has heightened our concerns that some groups will need more support than ever to access the scheme.

Turning to the impact that ending free movement will have on migration flows in key sectors, the Bill provides more questions than answers. It is incredibly narrow in scope, as we have discussed, which is extraordinary given that it will create the biggest change to our immigration system in decades. Instead of putting forward a new immigration system, which Parliament could discuss, debate, amend and improve, the Bill grants powers to Ministers to introduce whatever system they like with extensive Henry VIII powers.

The Government’s February 2020 policy statement indicated what such a system might be like. Properly debating most of that new system will be deemed out of scope for this Bill and this Committee, but we will do what we can within scope to set out principles and solutions for when clause 1 comes into effect.

A number of the witnesses on Tuesday were critical of the Government’s planned £25,600 threshold—not just on health and social care—and transitioning on to a visa system and sponsorship routes will cause headaches and shortages for a range of businesses, exacerbating economic uncertainty. For example, the Bill fails to address the UK’s need for migrant workers to allow the agriculture sector simply to function, which is another issue that we will explore when we debate the new clauses.

To be clear, Labour has no problem with an immigration system that treats all migrants the same, no matter where they come from, but that is not the system the Government propose. A points-based immigration system could be effective. However, it would be predicated on receptive analysis of occupation shortages, parallel education and skills strategies that seek to fill long-term job gaps with domestic talent, and a pragmatic yet empathetic Border Force. The Bill fails to do any of that, and we will seek to remedy this, within the bounds of its scope, through our amendments and new clauses.

--- Later in debate ---

[Kevin Foster]

I will reply briefly. I recognise the position of the Scottish National party on the Bill and on these particular proposals. There is a fundamental difference, but I assure the hon. Gentleman that he is always worth listening to, even when we disagree. He laments the absence of the tourism and hospitality industries on Tuesday. Regardless of our views on the Bill, we all look forward to an era when those industries will be able to think about recruiting again, rather than being in the position that we expect them to be in of significant job losses, including in my constituency, over the coming weeks and months, given the impact of recent weeks.

To turn to the comments of the hon. Member for Halifax, I was listening on Tuesday to the evidence from Professor Brian Bell, interim chair of the MAC, particularly on social care, and I cannot remember him saying that a general route for employers in the social care sector to recruit abroad at or near the minimum wage would be good news for the social care sector. In fact, I think he said precisely the opposite. To be clear, the general salary threshold is being reduced to £25,600, but where an occupation is deemed to be in shortage, it will be subject to a lower salary level of £20,480 a year.

It is also worth pointing out that for more than 20 categories of healthcare professional and allied healthcare professional, their eligibility will be based on the national salary scales paid in the NHS, rather than the general salary scales set out in the wider immigration rules. That is linked to the creation of what we are looking at as a healthcare visa to give fast-track access and reduced fees to people under that scheme. It is important that we keep placing those facts on the record so that people are aware of them, given some of the not very well informed commentary we have seen in the media, such as the claim that nurses will not be eligible, when in fact they will be fast-tracked and prioritised under our system.

[Holly Lynch]

I am concerned that the Minister has put words in my mouth in relation to what the MAC said about social care. What we did hear loud and clear from a number of witnesses, however, was that there is no plan to address workforce issues in social care when free movement ends. Is he minded to have specific remedies for social care in his future plans, before we end free movement?

[Kevin Foster]

Again, if people think, from what we have seen in the last few weeks, that the remedy for social care is to recruit more people at or near to the minimum wage from abroad, that is an odd conclusion to draw.

[Holly Lynch]

Domestically.

[Kevin Foster]

We will certainly talk to the Employment Minister. Again, I am conscious of the scope of the Bill and not going off more widely into our labour market strategies.

One conversation I recently had with the Employment Minister was about how, sadly, a lot of people in my constituency, and I am sure in the hon. Lady’s constituency as well, need to find new employment opportunities. Social care, and the healthcare sector more widely, will be part of providing some of those opportunities, not just through entry level jobs, but by ensuring that education, colleges and others are training people towards skilled jobs and providing real career progression.

For me, that is the solution for social care, rather than looking to the migration system as the overall labour market solution. I am sure we all share the sentiment, whatever any of us thinks of ending free movement, that the sector needs to be more invested in and more valued, and that there need to be clearer paths of career progression that people can see when they are deciding what they want to do for a job and a career.

I am conscious, Sir Edward, of what you said about the scope of the Bill. We could have an interesting discussion about the overall labour market strategy, but for now, this is a focused debate about why clause 1 is important and delivers the core of what the Bill is about.

Question put, That the clause stand part of the Bill.

--- Later in debate ---

[The Chair]

Before I call the Minister, does anybody else wish to speak? In that case, over to you, Minister.

[Kevin Foster]

Thank you, Sir Edward. I just thought I would be courteous, in case there was another hon. Member who wished to speak.

Amendment 18, which stands in the name of the hon. Member for Cumbernauld, Kilsyth and Kirkintilloch East, and his colleagues, would remove paragraph 4(2) from schedule 1 to the Bill, which disapplies provisions of the workers regulation, which conflict with domestic immigration law. This would mean that the UK remained bound by EU law in relation to the rights of EEA citizens to access the UK’s job market, which might in part be the hon. Gentleman’s intention, given his well-known view on that subject.

The Government, therefore, cannot support this amendment, because it would effectively result in free movement rights for workers and their families continuing after the end of the transition period. The Government are committed to ending the free movement of people now that we have left the EU, so therefore this proposal is incompatible with that. The Government are committed to ending the free movement of people now that we have left the EU, so therefore this would be incompatible with that.

We have made it clear that we will bring free movement to an end on 1 January, and introduce an effective and fairer points-based immigration system that takes into account the needs of the whole of our United Kingdom and works for the whole of our United Kingdom. It will be a system that reflects the skills and contributions that someone has to offer, not where the person comes from.

[Stuart C. McDonald]

The Minister is right that I would love to see all these rights retained, but that is not the motivation behind this amendment. I accept that the Government want to go about repealing some rights, but the Bill does not really do that. It says, in a peculiar way, that the rights are “sort of repealed” and one has to check back through immigration legislation for decades to work out to what extent. Why has it been done in this way rather than setting out specifically which rights are retained and which are not?

[Kevin Foster]

The answer is partly that it is not possible to draw up an exhaustive list of directly affected law in terms of the EU because court judgments will affect that. One reason for the wording is to make it clear that it relates to the Immigration Act 1971 and does not create a wider enabling power around the workers regulation. I am also clear that those who are subject to the withdrawal agreement are covered by those provisions.

During the passage of the European Union (Withdrawal Agreement) Act 2020 we discussed in great detail the provisions for protecting the rights of EEA citizens resident in the UK by the end of the transition period, which is 31 December this year. The EU settlement scheme, which was fully opened on 13 March 2019, was specifically introduced for this purpose. One of the rights protected by the status granted under the scheme is equality of access to employment, benefits and services, in the manner outlined by the workers regulation.

Retaining sub-paragraph (4)(2) of schedule 1 will in no way compromise our commitments to upholding the rights of resident EEA citizens already working in the United Kingdom. It will simply ensure other provisions of the workers regulation, which are not specific to immigration, do not have ongoing effects on UK immigration law, but continue to have their effects for other purposes, hence the wording of the sub-section. Otherwise the UK would be required, for example, to provide all EEA citizens with an offer of employment as though they were British citizens, meaning they could not be subjected to any restrictions on access in the UK labour market, directly undermining the new points-based immigration system, which will not provide preferential treatment for EEA citizens.

The changes made by sub-paragraph (4)(2) only relate to immigration aspects of the workers regulation and will not affect any other rights provided by that regulation. For example, the right to equal treatment in respect of positions of employment and work, and the right to join a trade union are unaffected by the provision, because this Bill is not the appropriate vehicle in which to consider them or to look for a power to alter or amend them.

It is less than six months since the British people voted to take back control of our borders and introduce a new points-based system to control immigration, which will deliver for the UK for years to come. This provision, ending the immigration rights provided by the workers regulation, is one the steps needed to pave the way for the new system. For those reasons, the Government cannot support this amendment and I ask the hon. Gentleman to withdraw it.

[Stuart C. McDonald]

I thank the Minister for his explanation. I absolutely understand what the Government are trying to achieve and that some of the rights in the workers directive have been put in legislation, including in the European Union (Withdrawal Agreement) Act 2020. However, that is not the point that this amendment is trying to make. The point is about how the Bill is—or is not—going about repealing the workers directive.

It is essentially a point about the rule of law. When I intervened, the Minister said that it would not be possible to draw up an exhaustive list of exactly how these rights were affected by Immigration Acts and other provisions. If the Government cannot do that, how on earth is the ordinary citizen supposed to be able to tell what their rights are? I think we should take this paragraph out of the schedule and, if the Government are unhappy with the implications that has in leaving things on the statute book, they should come back on another occasion with a clear list and fix it that way. I would like to push the amendment to a division.

Question put, That the amendment be made.

--- Later in debate ---

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

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

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

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

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

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

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

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

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

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

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

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

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

[Kevin Foster]

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

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

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

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

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

--- Later in debate ---

Question proposed, That the clause stand part of the Bill.

[Kevin Foster]

I do not expect this clause to be controversial, but given some of the evidence that we heard, it may be useful to set out one or two responses, especially the Government’s long-standing policy on deportation of Irish nationals. As Committee members will know, clause 2 protects the status of Irish citizens in the UK when free movement ends. British and Irish citizens have enjoyed a unique status and specific rights in each others’ countries since the 1920s as part of the common travel area arrangements.

Under clause 2, when free movement ends, Irish citizens will continue to be able to come to the UK without permission or restrictions on how long they can stay. British citizens, as you are probably aware, Sir Edward, enjoy reciprocal rights in Ireland, again reflecting the unique historical position of the Republic of Ireland and the UK.

The clause provides legal certainty and clarity for Irish citizens by inserting a new section 3ZA into the Immigration Act 1971. New section 3ZA will ensure that Irish citizens can enter and remain in the UK without requiring permission, regardless of where they have travelled from. This is already the position for those entering the UK from within the common travel area, but Irish citizens travelling to the UK from outside the common travel area currently enter under EEA regulations. This clause will remove that distinction by giving Irish citizens a clear status once free movement ends. While that may not have been impactive, it is there in a technical, legal sense, which is why this clause is necessary.

--- Later in debate ---

[Stuart C. McDonald]

Given what the Minister and shadow Minister have said, I can, I hope, be helpfully brief. I am grateful to the Minister for clarifying the position on deportation, but the shadow Minister raises a reasonable point. The Minister has clarified the policy— but why not put it on the face of the Bill? I very much welcome the Minister’s confirmation of how Irish nationals will be able to come from outside the CTA with family members. It is a welcome clarification.

I want briefly to refer to the broader issue of common travel area rights. We are often told about the historic common travel area, and the fact that the rights go back many decades. That is true, but in recent years most of those rights have become embedded in and entangled with free movement rights. In the Bill, we are repealing those rights but not replacing them with common travel area rights. The Government keep talking about reciprocal rights, but we need them to be set down in statute.

So far, as the Minister said, there seems to be a non-binding memorandum of understanding with the Government of Ireland, and a Government position paper, setting out the fact that there will be rights to work, study, social security and healthcare access, and vote. For the Irish Human Rights and Equality Commission, essentially those CTA rights are “written in sand” and for the Committee on the Administration of Justice the CTA can be characterised by loose administrative arrangements of provisions that can be altered at any time. So we need to return to this issue of when we will actually see a detailed scheme of rights for the common travel area.

There is some urgency about this matter, because at the moment, for example, there are people in Northern Ireland who choose to be Irish citizens and who have the option of applying under the EU settled status scheme, but they will have to make that decision without really knowing how the benefits of the EU settled status scheme compare with the benefits of the common travel area scheme, because that has not been spelled out in great detail yet. There are practical issues that have been flagged up by the organisations I have mentioned about cross-border rights to access healthcare and education, and so on. All these questions need to be answered, and fairly urgently.

Finally, I will echo what the shadow Minister said about Alison Harvey’s evidence on the right of abode, and I would be interested to know whether the Government are considering achieving some sort of resolution of these issues by using the right of abode. However, we will return to these issues when we debate the new clause that the shadow Minister has tabled.

I welcome clause 2, but we still have a considerable way to go in making sure that the common travel area persists and works properly, and that folk know where they stand.

[Kevin Foster]

I thank the SNP and Labour spokespersons for their overall support of the clause. I think I have been clear that there is a very strong commitment to the common travel area. Elements of its operation are inevitably required due to the provisions of the Belfast agreement, which is actually international law; it is a treaty between the United Kingdom and the Republic of Ireland, so it is not something that can just be amended on a whim. Far from it—it is underpinned by the strong consent of both communities, north and south, as expressed in referendums at the time it went through.

The commitment of both Governments to the common travel area has persisted for decades and will continue to do so. Irish citizens can apply to the European settlement scheme. I do not see any detriment that would come to them from doing so, but neither is there a requirement for them to do so, given the clarity that the clause brings to their rights within the United Kingdom. To be absolutely clear, the clause looks to remove that difference in the technical definition between an Irish citizen who has arrived in the United Kingdom on, for the sake of argument, the Eurostar from France, as opposed to arriving in the United Kingdom on a plane from Dublin.

It is probably worth saying that it would be interesting to work out how that definition could have actually affected someone’s life, apart from some of their more theoretical rights. However, I will be clear on that front that the Bill removes that difference. For an Irish citizen within the United Kingdom, it applies regardless of which country they travel from—whether they have travelled to the United Kingdom from within the common travel area or, for example, from the United States of America—[Interruption.] I am glad that the hon. Member for Halifax was reassured by that.

Effectively, Irish citizens become identified —I accept that this is perhaps a slightly controversial thing to say in the context of people’s identity—as British in our system of migration. Effectively, their Irish passport becomes equivalent to a UK national’s passport.

As for the provisions around deportation, I was asked whether there was a particular example. My officials in the Home Office have spent some time over the last week or two trying to find an example under current legislation —not under legislation, perhaps, from previous eras—of someone being deported from the United Kingdom to the Republic. We struggled; so far, I cannot find a specific example. I do not see any Member of the Committee who is about to jump up and give me an example, in order to contradict me on that point.

In particular, we are not aware of there ever having been, even at the heights of the troubles, a particular stream of deportation from Northern Ireland into the Republic. Partly, that is because we would all have to question the practical effect of deporting someone from County Londonderry to County Donegal; how on earth would anyone effectively enforce that in any way? Also, however, the spirit between the two Governments has been very much that we respect the rights of those who are there and, to be clear, that is set out in a 2007 written ministerial statement. That was not done under a Government formed by my party. The written ministerial statement has been there for 13 years. I wrote to the Irish Government about the fact that the provisions were in the Bill, and we have not received negative representations. The minimum threshold would have to be an offence that carried a 10-year prison sentence, so we are talking about very serious criminal offending, or the court would have to recommend it.

--- Later in debate ---

Question proposed: That the clause stand part of the Bill.

[Kevin Foster]

The clause is minor and technical in its nature, but it is important for the implementation of the Bill and for a fully functioning statute book. Effectively, it states that the Bill will be one of the Immigration Acts. I commend the clause to the Committee.

[Holly Lynch]

There is so little in clause 3 that we will not make a contribution to it.

Question put and agreed to.

Clause 3 accordingly ordered to stand part of the Bill.

Clause 4

Consequential etc. provision

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

Kevin Foster Excerpts

Committee stage & Committee Debate: 1st sitting: House of Commons
Tuesday 9th June 2020 Public Bill Committees

[The Chair]

Before we begin, I have a few preliminary points. Members should switch off any electronic devices or switch them to silent. As in all Bill Committees, tea and coffee are not allowed during sittings. Obviously, I must stress the importance of social distancing in the Committee Room. I will suspend proceedings if at any point I am not satisfied that advice on public health is being observed.

The Hansard reporters would be most grateful if Members could email any electronic copies of their speaking notes to [e-mail].

We will first consider the programme motion. We will then consider a motion to enable the reporting of written evidence for publication and a motion to allow us to deliberate in private about our questions before the evidence session. If there are any questions about our unusual procedure because of social distancing during that session, we can deal with them then. In view of the limited time available, I hope we can take these matters without too much debate. At 11 o’clock, there will be a minute’s silence in memory of the death of George Floyd.

I call the Minister to move the programme motion, which was agreed at the Programming Sub-Committee yesterday.

[The Parliamentary Under-Secretary of State for the Home Department (Kevin Foster)]

I beg to move,

That—

(1) the Committee shall (in addition to its first meeting at 9.25am on Tuesday 9 June meet—

(a) at 2.00pm on Tuesday 9 June;

(b) at 11.30am and 2.00pm on Thursday 11 June;

(c) at 9.25am and 2.00pm on Tuesday 16 June;

(d) at 11.30am and 2.00pm on Thursday 18 June;

(e) at 9.25am and 2.00pm on Tuesday 23 June;

(2) the Committee shall hear oral evidence in accordance with the following Table:

[The Chair]

Copies of written evidence that the Committee receives will be made available in the Committee Room.

Resolved,

That, at this and any subsequent meeting at which oral evidence is to be heard, the Committee shall sit in private until the witnesses are admitted.—(Kevin Foster.)

--- Later in debate ---

[The Chair]

Thank you. Richard Burge, please introduce yourself.

Richard Burge: Thank you very much. My name is Richard Burge. I am the chief executive—fairly recent—of the London Chamber of Commerce and Industry.

Martin McTague: I am Martin McTague. I am the chair of policy and advocacy for the FSB in the UK.

[Kevin Foster]

Q I will start with a slightly more open question to the two witnesses. How do you see small businesses adapting to the new system that we have proposed?

Richard Burge: With difficulty. The obvious difficulty they have is that they are surrounded by chaos at the moment. Many small businesses have furloughed a large number of members of staff, or they are operating on their own. They have only so much bandwidth, so this will be hard work for them, particularly as they do not know what the rules will be. If they employ EU citizens, their concern is that they will now be introduced to the world of having to register themselves and get themselves licensed, which, like customs documentation, is a completely new world for them, and they have six months to do it.

Martin McTague: Sorry, I could not hear that question very well. Could you repeat it? You are very echoey and quite distant.

[The Chair]

Just before you do, Minister, it would be helpful if when asking questions, Members said who they were directing the question to.

[Kevin Foster]

Q Certainly, Mr Stringer. The question was an open one, directed at both witnesses, and it was basically about how they see small businesses adapting to the proposed new immigration system.

Martin McTague: I just about got that; I think it was a question about small businesses’ experience of immigration. The reality is that 95% of small businesses have absolutely no experience of dealing with any kind of visa system, and the system has been largely designed for larger businesses with reasonably sophisticated HR resources. We have found that the biggest concentration of issues is to do with mid-skilled occupations; in other words, the debate tends to be very binary. It either refers to high-skilled and very sophisticated employment requirements or completely low-skilled ones, but there are a lot of mid-skilled positions that fall within the £20,000 to £30,000 bracket, and those are the ones that cause the most problems for small businesses in the UK.

[Kevin Foster]

Q I would like to ask two follow-up questions, one to each witness, if that is acceptable. My first question is to Mr McTague, given what he has just said about mid-skilled workers being a particular issue. Does he see the skill level of skilled workers’ being changed to RQF3—that is, A-levels—as helping to address that issue?

Martin McTague: I assume that was to me, was it?

[Kevin Foster]

My question to Mr Burgh is about the fact that he talked about the process of sponsorship and becoming licensed. He may be aware that the Home Office is looking to streamline that system. Is there a particular change, or changes, he thinks we could make to the sponsorship licensing system that would help address some of the concerns he outlined?

Martin McTague: [Inaudible] it is welcome. It is a change that we were keen to see, and there has been a welcome change in the Government’s approach.

Richard Burge: To add to that, first of all, I have great admiration for the Home Office team working on this. I have worked for Matthew Rycroft before, in the Foreign Office, and he is one of the most talented managers in the public service. I think umbrella licensing is a good idea: it has good precedents, and it would create a huge relief for small businesses if they felt they could go to an organisation that had the ability to provide umbrella licensing. It would provide reassurance to the Home Office and a workable solution for small businesses, and we would be happy to be part of that process.

[Holly Lynch (Halifax) (Lab)]

Q As free movement comes to an end with this Bill and we transition to the minimum income requirement of £25,600, how have your members responded to that minimum income threshold?

Richard Burge: In two ways. One is relief that the threshold was lowered; it is now a much more realistic threshold. I have to say, though, that it is going to be a lot more workable within London than it is for my colleagues who run chambers in other parts of the country. A threshold of £25,600 is quite high in different parts of the UK, given the wage levels there, so while I think it is workable in London—not ideal, but workable—I also think we concentrate on income too much as an indicator of value, rather than skills, and that in parts of the country, the threshold is still probably too high.

--- Later in debate ---

[The Chair]

Good morning, Mr Fell. The Bill Committee will now hear your oral evidence. I am sorry about the technical hitches; you will be on your own, not with Make UK.

Thank you very much for agreeing to give evidence today. If you would like to briefly introduce yourself, we can move straight to questions. We have about 10 minutes.

Matthew Fell: I am Matthew Fell, chief policy director at the CBI.

[Kevin Foster]

Q I will ask one question, because of constraints of time. How do you see your members working with the proposed new migration system?

Matthew Fell: I think our members completely understand that free movement of people is ending. Business gets that, and it is ready to phase into a new immigration system. I think, with the proposed approach of a points-based system, it is entirely possible to design a system that works for business. There are many positives in it so far—the headline salary threshold changes that have been announced and the commitment to streamline and improve the system are all positives—but I would say that there are perhaps three areas of concern for our members at the moment.

One concern is the absence of any route at all below level 3, which will prove challenging for the care, hospitality and logistics sectors and so on. The second, from the Government’s perspective, is introducing this with a phased approach; I can perfectly see where they are coming from, but it means that business will be left with a reasonably cumbersome system from the off, with a promise of improvements to come. The third is that we are getting very close to the deadline for the system being introduced, and business is still looking for further clarity, time to prepare and assurances that the system will be ready in time. Those are the concerns, against a backdrop of an effort to really make this work and lean into it.

[Holly Lynch (Halifax) (Lab)]

Q Bearing in mind what you have just said, what are the things that you would really like changed about the Bill? Alternatively, what would the Government need to do to support you to manage the impact that it will have on your businesses?

Matthew Fell: There are a few things that we would like to see in the proposed new immigration system. We believe that a temporary route for people to come and work in this country would be a helpful addition to the system as it is currently set up.

Secondly, I would say to accelerate efforts to streamline the proposed approach. The vast majority of businesses have never previously had to engage with the visa system; something like only 30,000 businesses in the country have grappled with it so far, because we have lived and worked with free movement of people for so long. It will be a big change, so I would say to accelerate the changes to streamline and improve the system, reduce red tape and so on.

The final piece, just to reiterate, is to accelerate efforts to get clarity and detail out there and known to businesses as soon as possible, so they can begin to familiarise themselves, prepare and get ready.

--- Later in debate ---

[The Chair]

Welcome to the Committee. I apologise for the difficulties we had before. You will be on your own. First, can you introduce yourself to the Committee for the record, and then I will ask the Minister to ask you a question?

Tim Thomas: My name is Tim Thomas. I work for Make UK, the manufacturers’ organisation. I am Make UK’s director of employment and skills policy, so I cover all work-related issues and a few political issues, including immigration policy.

[Kevin Foster]

Q Mr Thomas, how do you see the manufacturing sector working with the proposed new migration system?

Tim Thomas: Sorry, could you just repeat that? It was a bit echoey. Apologies for the line.

[Kevin Foster]

I will say it slowly; it will sound weird. How do you see the manufacturing sector working with the new system?

Tim Thomas: In terms of how the manufacturing sector will work with the new system, it will be a considerable challenge to cope with the end of free movement. Around 95% of our members employ an EU worker and about 5% employ a non-EU worker, so the majority of Make UK members do not currently interface with the tier 2 non-EU migration system. There will be a considerable change for manufacturers’ recruitment practices with the implementation of the points system.

It is fair to say that the changes to the proposed points-based system for manufacturers will ease the route. The reduction in the qualification level from level 6 to level 3 and the reduction in the salary threshold will make things easier for manufacturers than they would be. However, manufacturing is a global business; about half of manufacturing exports go to the European Union, and they cannot export their British-manufactured goods to the EU without an exchange of people. People, and the cross-fertilisation of people between the UK and the EU, go hand in hand with trade in manufactured goods. There is a strong connection with the EU and global trade in the manufacturing sector, and the ability to recruit people from outside the UK is vital to that trade.

[Holly Lynch]

Q As free movement comes to an end, Mr Thomas, how satisfied are you that the Migration Advisory Committee and the shortage occupation list understand the requirements of the manufacturing sector and are able both to respond to potential shortages in skills and to understand the variety in salaries paid in your sector?

Tim Thomas: At Make UK, we have responded over several years to calls for evidence from the Migration Advisory Committee, and we are preparing our response to the current call for evidence. If I may make one point before I come to your question, the call for evidence from the MAC has a very short window for Make UK and other organisations to respond. That is because the points-based system is being implemented on a very truncated timeline. In gathering the evidence for the MAC, Make UK and other organisations face a stiff challenge in ensuring that our response is evidence-based and provides a realistic forward look at the manufacturing sector and the jobs we will need in the future.

As for how realistic the MAC can be in its work and how realistic we can be, covid-19, the changes to the manufacturing sector and the difficulties it is in have presented a challenge in showing the MAC the true state of what occupations are in shortage in our sector at the moment. The manufacturing sector systemically suffers from long-term skills shortages—we are no different from any other western European economy in that regard—and that is not because manufacturers do not train. About 75% of manufacturers have apprenticeship programmes, and Make UK is an apprenticeship provider. We are investing in training the next generation of talent, but the fact is that there are certain skills, including digital skills, that are not available in the UK, and we need them to make sure the manufacturing sector is internationally competitive and productive. In terms of the work of the MAC, it needs to take a realistic view of what the UK labour market can provide, given those skills shortages and how long it will take it to adjust at the end of free movement, given that those skills can be brought in through the points-based system.

There are some key elements of the manufacturing sector for which workers tend to come from the European Union. One is new green technology. We all support the move away from an economy in which electricity generation is carbon-based, towards clean energy. Clean energy is something that our members are investing large amounts of resource in. A lot of those skills, simply because the technology has been deployed for longer in the European Union, exist in, for example, Germany and Denmark to a greater extent than they exist in the UK. Accessing those green skills—those environmentally friendly skills—and that new technology is something that most people would support. We just need to make sure the MAC captures the fact that those skills are in shortage in the UK at the moment.

--- Later in debate ---

[The Chair]

Mr Bell, thank you very much for coming today. I remind members of the Committee that at 11 o’clock the bell will ring and there will be a minute’s silence for George Floyd. We will stand for that minute. Would you like to introduce yourself, Mr Bell, for the benefit of the record?

Brian Bell: I am Professor Brian Bell. I am the interim chair of the Migration Advisory Committee and professor of economics at King’s College London.

[Kevin Foster]

Q I will start with perhaps a slightly more general question. The Migration Advisory Committee has recommended that in the context of the Bill ending free movement with the European Union there should not be a dedicated general route for employers to recruit at or near the minimum wage from outside the UK and the Republic of Ireland. Would you like to explain to the Committee the reasoning behind that recommendation?

Brian Bell: If you move to a system in which you take control of immigration and are no longer subject to free movement under the European Union, you essentially have to have a selective immigration policy, and the question is where you think that selectivity should be. All the evidence that the committee reviewed in its 2018 report pointed to the benefits to the United Kingdom being highest when we focused on high-skill immigration—often high-wage immigration—and the gains, to the economy as a whole and also the resident population, which is our key metric, as it were, being highest with those kinds of workers. If you are going to have any kind of selectivity, that is where you want to tilt the balance, as it were.

That does not necessarily mean that you do not have any access to workers at low wages and with lower training or educational requirements. There are other routes that are already available within the system for immigration. For example, the family route allows you to recruit people who come through the family route for immigration, and there is the asylum route—once applicants are granted asylum they can be employed in the United Kingdom without regard to their skill level. There are alternative routes, and in fact that is extremely common. There are an awful lot of non-EEA workers employed in British firms across sectors who would not meet the requirements of the new immigration system but still have a job because they can come through different routes.

At the end of the day, there is a crucial distinction that we draw. With jobs where the training requirement and the education, both academic and vocational, to begin that job are reasonably low, firms can actually compete against each other, and we sort of want firms to compete against each other for workers, because that is good for workers; whereas for more technical, highly skilled jobs with very high training requirements there is often a practical difficulty in getting a new supply if you need it. You cannot just turn on the tap, so migration is a more obvious response for that.

[Kevin Foster]

In terms of that general route for recruitment, the MAC made some specific comments on the care sector, again in the context of the Bill ending freedom of movement. It was very specific against a sectoral scheme. Could you explain some of the rationale for that?

Brian Bell: The first point to bear in mind when thinking about the social care sector is that it is often described as being dependent on migrant workers. Nothing could be further from the truth. Something like 80% of those working in the social care sector are British, so actually it relies on British workers. The European Union is a relatively small fraction of the social care employment sector relative to the economy as a whole, accounting for about 5% of it, depending on which statistics are used.

We do not think there should be a particular route for social care because we think that immigration has historically been used as an excuse to not deal with the problems of the social care sector. The problems of the social care sector are fundamentally nothing to do with immigration. They are to do with the fact that, frankly, Governments of all stripes have failed to grasp the funding issue of social care. If people say that the response to the social care issue should be, “Well, employers should be allowed to bring in as many migrants as they want at the minimum wage,” first, that does not sound like the low-wage problem of the social care sector is being dealt with, and secondly it suggests that one of the groups that will really suffer from that is the social care workers. You are saying that you are going to keep on allowing their wages to be held down by allowing employers to bring in workers at the minimum wage, whereas we want to see wages rising in that sector. That will not happen if there is a continuous supply of free labour from abroad willing to work at the minimum wage.

[Kevin Foster]

Q Some of the earlier witnesses—particularly those from the London Chamber of Commerce and Industry and especially from the Federation of Small Businesses—talked about the need for flexibility when it comes to those sections of the Bill setting how we will empower Ministers to set the future migration system. Given that the Migration Advisory Committee’s role is to provide expert advice to the Government—to myself and the Home Secretary—how do you see it being able to respond to the demands of the new system in the context of the Bill?

Brian Bell: The Migration Advisory Committee has a key role in making sure that we keep a pretty constant view of what is happening across sectors, occupations and industries as the new system is rolled out, to see where problems are emerging. When you switch from a system that has been running for 40 years to a new one that incorporates all European Union countries as well, there will inevitably be teething problems. It would be surprising if that were not the case. We will be focussed on looking for the evidence: where is the system having problems? We will be highlighting those to the Government, and we can do that. We have an annual report that we will be publishing, and we will be highlighting to Ministers where the problems are, as well as potentially what solutions might be available.

[Kevin Foster]

Q The Migration Advisory Committee also advised specifically against having regional variations in the migration policy, specifying that there should not be any in the Bill. Is there any particular reasoning behind that recommendation?

Brian Bell: We were asked explicitly to think about whether there should be regional variation in the salary thresholds that are a key part of the system. The easiest way to answer that is to think about the fact that the median wage in Edinburgh for a full-time worker is higher than it is in Newcastle, Manchester, Leeds, Birmingham, Cardiff and Belfast. Compared to Dumfries and Galloway, it is 25% higher. In other words, regional wage variation—if by that you mean either the nations of Britain or the regions of England—demonstrates that variation within those areas is much greater than variation across them. If you really wanted to go down that route, you would need an immigration system that set thresholds in every local community around Britain. I do not quite know how that would be enforced. You would be explicitly saying that low-wage areas should stay low-wage areas and that high-wage areas should stay high-wage areas. I am not sure that it is a very sensible policy.

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

Kevin Foster Excerpts

Committee stage & Committee Debate: 2nd sitting: House of Commons
Tuesday 9th June 2020 Public Bill Committees

[The Chair]

Good afternoon. This is the second evidence session, and it will be a mixture of people who are with us physically and people who are here virtually, so we will have to cope as best we can. Our first witnesses are a representative of British in Europe, via audio link, and Professor Bernard Ryan. We have until about 2.40 to take that evidence. I will go first of all to the Minister, then to the Opposition spokesman. Is anybody else desperate to ask a question at the moment? You can put up your hand and intimate to the Clerk that you would like to speak.

Those of you who are sitting at the back of the hall—you are very welcome, by the way—are equally members of this Committee. Apparently if you want to speak, you have to go to a microphone over there. Are we all happy to start the session? We have to ring our witnesses now, so please be patient.

We are ready to start with our first panel of witnesses. Thank you for coming today. This session will have to end at 2.40pm.

[The Parliamentary Under-Secretary of State for the Home Department (Kevin Foster)]

Q 64 It is a pleasure to serve under your chairmanship, Sir Edward. Mr Morgan, what implications do you see for British citizens living in Europe regarding the social security co-ordination provisions in the Bill?

Jeremy Morgan: The sound is not very good but I will do my best. The question was about social security provisions, is that right?

[Kevin Foster]

It was about what implications you see for British citizens in Europe regarding social security co-ordination provisions in the Bill.

Jeremy Morgan: May I start by thanking the Committee for asking us to give evidence, even in this rather strange way? The social security provisions are crucial for UK citizens in the EU. They govern pensions, pension increases, healthcare, other benefits, and the aggregation of the equivalent of national insurance contributions made in different countries, without which some people would fail to meet the minimum contribution period for pensions or other benefits. Those provisions are preserved in UK law by the European Union (Withdrawal) Act 2018 so there should be no impact. However, as is made clear in the briefing note that we prepared and that has, I hope, been circulated, we are worried about clause 5 because that clause creates a regulation-making power wide enough to modify rights under the withdrawal agreement. We entirely accept that in the explanatory note the Government say that they do not intend to have an impact on our withdrawal agreement rights, but we are worried about that on two grounds, and the concerns are twofold.

First, as a constitutional issue it is wrong to create a power in a regulation that might breach an international treaty. If that is to be done, it should be done by primary legislation after a proper debate. Secondly, and more practically, those social security provisions that are listed in the Bill are right up there with UK immigration law for complexity. It is Byzantine complexity, and that is no exaggeration. It would not be difficult for an unintended breach to slip through. Therefore, to prevent a breach of a treaty by mistake, it is important that any such amendment be made through primary legislation after a proper debate.

[Kevin Foster]

Q Speaking as a Minister, a Minister cannot make a regulation that breaches international law, just to be clear on that point. Would you have concerns if, for example, an agreement on social security co-ordination was reached but the legislation did not allow the Government to quickly implement it?

Jeremy Morgan: I am sorry, I am having great difficulty in hearing the question.

[The Chair]

Minister, I think you need to lean in to the microphone and speak loudly.

[Kevin Foster]

A Minister cannot breach international law in regulations. Would you have any concerns if the legislation, for example, did not empower a Minister to quickly implement an agreement in relation to social security co-ordination if one was reached with the European Union before 1 January?

Jeremy Morgan: You are talking about the future relationship beyond Brexit, effectively?

[Kevin Foster]

Yes. Effectively, there are negotiations ongoing, and the issue is what happens if the Government reached an agreement and wished to implement it before that time.

Jeremy Morgan: I should start by saying that we were fairly careful in the representations that we made. We are a group that represents British citizens in Europe who are affected by Brexit and were there before Brexit. We have tended not to get into policy post the end of the transition period, simply because it is not within our remit to do so. It is for others to express views on that. Clearly, if a further agreement is made for rights that extend to others beyond those who are already in the EU, it is important that the Government should be able to implement that, but whether that is by primary legislation or regulations made at the time for that purpose is a matter for this Committee to decide. I do not think British in Europe would have a strong view about it.

[Holly Lynch (Halifax) (Lab)]

Q Perhaps I can come to Professor Ryan first. Thank you very much for your written submission to the Committee. Can you talk us through what you think might be missing from clause 2?

Professor Bernard Ryan: Certainly. First, I thank the Committee and the Chair for the invitation.

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[The Chair]

You are very welcome. As we normally do, the Minister will start by asking you a couple of questions, and then the Opposition spokesman, and then other Members will come in. Perhaps other Members who wish to ask questions could intimate to the Clerk that they would like to ask a question.

[Kevin Foster]

Q I have two questions, one for each witness; I will ask them both and then we can just cover them off at the same time.

The first question is to Mr Goodhart. I noticed that the January 2018 report from Policy Exchange, “Immigration after Brexit”, welcomed the ending of free movement. As you will appreciate, the main provision of the Bill is to alter UK law to remove the provisions for free movement. I wondered how you saw that, and how you saw the system that will seek to replace it, which we confirmed in a policy statement in February.

My question to Ms Rutter is this: given, obviously, the area that she covers in her group’s interest, I wonder how she sees the working of the European settlement scheme, which has now had 3.5 million applications, in terms of securing the continuing rights of EU citizens in the UK, or EEA citizens in the UK to be exact, under the withdrawal agreement.

David Goodhart: A general comment on the Bill is that I think it is broadly welcome. Part of the motivation behind Brexit, and perhaps the 2019 election too, was a more moderate level of immigration. It is true that immigration has dropped down the list of things that people worry about, for obvious reasons, even before the covid crisis, but I think that was partly because people saw that the Government were actually doing something about it. And I think the Government have broadly got it right to focus very much on restricting lower-skill immigration.

I think the higher-skill immigration channels are probably somewhat more liberal even than the Migration Advisory Committee envisaged. I mean, there has been a big liberalisation both on the salary threshold and on the qualification threshold. Bringing the qualification threshold down from degree level to A-level is a big move, and it will be interesting to see whether those changes achieve the goal of an overall lower level of immigration. I think the perfectly reasonable and democratically willed goal is a lower equilibrium level of immigration without damaging the economy. That is the goal that the Government are hoping to achieve, and I think the measures they have introduced are likely to achieve that.

I think I would probably have gone for slightly tighter restrictions, perhaps keeping the degree-level qualification and then having more exemptions—the type of exemptions that we see in the agricultural sector and so on—because Governments have made promises about immigration many times in the last 15 years or so, and they have very clearly said that they want the overall levels to be lower. I think it is quite likely that in a couple of years’ time they will not really be significantly lower, and then that will set off a whole—but then we will have the levers, at least, to do something about that.

Jill Rutter: I would like to make some general points before coming to your question on the EU settlement scheme. I am going to draw from the National Conversation on Immigration, which is the biggest ever public engagement activity on this subject and included a nationally representative survey and discussions in 60 locations across the UK, including a good few of your constituencies.

Although public confidence in the ability of successive Governments to manage the immigration system has been and still remains low, most people are balancers who see the pressures and gains of migration. Generally, most people want immigration to be controlled, they want migrants who come here to make a contribution and they want everybody to be treated fairly. However, control means different things to different people. It can be about UK sovereignty, controlling numbers, a selective immigration system and enforcement.

There are two further points in terms of public confidence. Immigration is a national issue that people see through a local lens, so what happens locally is quite important, and people’s understanding of immigration policy is very top line. They do not know the details of our policy, such as the detail of the EU settlement scheme.

Treating people fairly is hard-wired into most people. Most people want to see fair play and humanity. They want immigration to be controlled, but that has to be fair, and you do not win support by sounding nasty. In terms of the EU settlement scheme, nobody wants people who are here to be sent home. Towards the end of the National Conversation, when Windrush was an issue, people also talked about the unfairness of the Windrush scheme.

In terms of the Bill, the devil is in the detail and policy will be set through immigration rules, but areas to look at perhaps include people who have been awarded pre-settled status being automatically granted settled status, rather than having to apply again, and also thinking about citizenship. The public find it very reassuring when people make the UK their home and then take up British citizenship. That can sound a bit counterintuitive, but there is a preference for people becoming citizens, rather than having guest-worker schemes. On immigration policy, you could look at how one can make the acquisition of citizenship smoother and easier—by reviewing the cost of citizenship, for example.

[Holly Lynch]

Q More broadly, through your work at Policy Exchange and British Future, how have you seen public attitudes towards immigration change over the past 12 months? David, may I come to you first?

David Goodhart: As I just mentioned, it has certainly dropped down in terms of priority and level of anxiety, but pretty consistently over the past 20-odd years about two thirds of the public have said that immigration is either too high or much too high. That may have come down a little bit recently. It has certainly come down in terms of priority, partly because other things have been happening, even prior to covid. It is also because of a feeling that, with Brexit finally happening and the end of free movement from the European Union, we would be in control of it again, so a source of anxiety was removed.

Jill Rutter: To echo what David said, immigration has certainly dropped down of the list of issues of public concern. It is much less salient. Ipsos MORI has also tracked the same group of people over a five-year period, and has seen a slight warming of attitudes. That is evident in other polling data, too.

I think the reason for that is, first of all, as David said, that people feel that now we are leaving the European Union, the UK has control over immigration from the EU. But also the referendum itself enabled a much more open, public debate about immigration in pubs and among groups of friends. Inevitably, in that discussion, there is a kind of moderation of our attitudes. That is a reason, too. Again, there is a displacement effect: covid-19 has pushed immigration off the news agenda.

--- Later in debate ---

[The Chair]

We will start with a question from the Minister, then the Opposition spokesman, and then other colleagues will come in as they wish.

[Kevin Foster]

Q I will start with a question to Mr Berry. You will be aware that the Law Commission published its report on simplifying the immigration rules. One of the places we want to go to with the changes in the Bill is having a single set of migration rules. What opportunities do you see that presenting, and what is your view so far on the response that has gone out in terms of simplifying and where you see that further work could be done?

Adrian Berry: I do not think that simplifying the immigration rules has much impact on inbound migration per se. It is obviously a good thing from the point of view of good rule making and from a user perspective. The more pressing question is how you integrate the intention to create free trade agreements with the EU and with other countries, and the migration routes there, with the Home Office proposals from January 2020.

We have the Home Office paper on the future of immigration, and then we have a parallel universe where there are free trade agreements with other migration routes and mobility rates contained in them—not just with the EU, but the proposed ones with Australia, New Zealand and the United States, drawing on precedents from existing EU free trade agreements with Korea, Japan and Canada. There appears to be no joined-up thinking in Government about what impact those mobility routes have on the Home Office proposals of January 2020. It is very important and necessary and urgent to see how that joined-up economic migration regime is going to work, and I have yet to see a Government paper on that.

[Kevin Foster]

Q Perhaps slightly later we can talk about international agreement. Obviously, the other aspect of this is the social security co-ordination clauses. There are negotiations going on, and there is a range of potential outcomes. Do you have any particular views about that clause?

Adrian Berry: On clause 5, you already have powers to amend ineffective retained EU law under section 8 of the European Union (Withdrawal) Act 2018, so you can make regulations under Henry VIII powers to deal with any deficiencies in retained EU law and social security. You have given yourself additional powers under section 13 of the European Union (Withdrawal Agreement) Act 2020 to make regulations for social security co-ordination, so you already have two sets of Henry VIII powers. You are currently negotiating a third social security treaty, annexed to the draft free trade agreement. If that is agreed with the EU, you will have another Act of Parliament that you will need to implement that. Why do you need a fourth set in clause 5? If there is anything left in social security law that you have not covered under the array of Henry VIII powers that you are arming yourselves with, primary legislation and the scrutiny of MPs in this room at the highest level is required.

[Kevin Foster]

Q And do you have any view on the fact that clause 5 will be stretched into devolved competence, subject to legislative consent motions? Is that part of your consideration at all?

Adrian Berry: It is devolved because it is a devolved power under the Scotland Act 1998.

[Kevin Foster]

Q Northern Ireland as well.

Adrian Berry: Yes, of course, but there needs to be primary legislation in whatever format, in my view, and not statutory instruments using the affirmative procedure.

[Holly Lynch]

Q Bella Sankey, perhaps I can come to you first. Will you outline for us what your hopes for change are, in terms of detention, through this piece of legislation? Will you also comment on David Goodhart’s remarks that those who, for one reason or another, have not applied for pre-settled or settled status through the EU settlement scheme may find themselves in a very precarious immigration position, and could find themselves in detention? What are the implications for those people, and what might need to change?

Bella Sankey: Thanks very much, Ms Lynch. For some time now, Detention Action has been working with a coalition of civil society organisations, including the Bar Council, the Law Society, the Equality and Human Rights Commission, Stonewall and others, and with MPs across the divide—Conservative, Democratic Unionist Party, Labour, SNP and Liberal Democrat MPs—to build a consensus around the idea that there needs to be a strict statutory time limit on immigration detention.

Immigration detention is a peculiarity of our public policy, in that there is no time limit. Unlike the criminal justice system or the mental health system, you can currently be detained indefinitely for months or years, and redetained indefinitely for months or years, without any statutory time limit in place if you are subject to immigration control.

It is a sweeping power that was introduced in 1971, when a series of immigration Acts acted to limit immigration from Commonwealth countries with the explicit intention of trying to reduce black and brown migration to the UK. The system was set up then, and has not been properly amended or looked at by Parliament. From the 1970s right up until the 1990s, a handful of people were detained, but it is now the case that thousands and thousands of people are detained each year. At present, as we sit here, 12 people in immigration detention have been there for more than one year.

The system is arbitrary and cruel. There is a crisis of self-harm in the system. Every day, my caseworkers speak to people who have suicidal ideation as a result of the indefinite nature of their detention. That is what everyone who has experienced the system will tell you: it is the indefinite nature that creates psychological torture and uncertainty. That means that people begin to lose the will to go on and live. We are seeking to implement a time limit through this Bill.

--- Later in debate ---

[Stuart C. McDonald]

Q Ms Sankey, may I turn to you? You have spoken already about how rules around detention will apply to people impacted by the Bill. May I ask you about deportation powers, which became topical a couple of months back, with flights to Jamaica in particular being a source of controversy? How will the Bill impact deportation powers in relation to EU nationals, and what would you like to see changed about it?

Bella Sankey: Thanks very much for the question. The Bill will mean that, for the first time, EU citizens will have the deportation laws that currently apply to non-EU citizens applied to them. Those rules are blunt, they are harsh and they are dehumanising. In 2007, the last Labour Government brought in a power of mandatory deportation for anybody who receives a sentence of 12 months or longer. In 2014, when Theresa May was Home Secretary, the coalition Government introduced additional legislation that meant that if somebody was seeking to resist deportation on the grounds that they had a loving parental relationship with a child in the UK, or a child who was a British citizen, they would only be able to do so if the effect of their deportation would have an unduly harsh impact on that child.

The Home Office defines “unduly harsh” as “excessively cruel”, so at present it is insufficient, if you are a non-EEA national, to show that the impact on your child would be cruel; you need to show excessive cruelty. The effect of that provision means that child cruelty is legislated into our primary legislation. It means that the courts, when they are making these decisions, are forced to allow a deportation to go ahead even though they may find on the evidence that serious psychological harm will be done to a child. The courts are clearly very uncomfortable about that and have said explicitly, in terms, that immigration law can no longer be reconciled with family law principles, because family law principles require the best interests of a child to be taken into account in all public decision making.

That is the situation as it stands. The impact of these laws over the past decade or more has been to cause untold trauma and pain, particularly to Britain’s black community, who are disproportionately impacted because, as is well-known, they are a community that is over-represented in the criminal justice system and subject to social and economic deprivation.

The issue from earlier this year that you mention was, of course, a charter flight to Jamaica. The majority of the people booked on to that flight by the Home Office had drugs convictions—a lot of them when they were teenagers or a long time ago. The law as it stands did not allow any of that to be taken into account, because of the automatic and mandatory power to seek deportation of those individuals.

A number of our clients were victims of modern-day slavery, grooming and trafficking, but again, they found themselves in detention without an opportunity to raise the fact that they had been subjected to that, and of course the large majority of them had been in the UK since they were two or three years old and had been in primary school here and secondary school here. I see the Minister does not seem to be agreeing with this account.

[Kevin Foster]

No.

Bella Sankey: But it is all there on the public record. As I say, the law as it stands has applied in a blunt and discriminatory way against the black community, and this Bill now proposes to extend those harsh provisions to all EU citizens.

I spoke only recently to a woman who was actually removed to Poland on 30 April, leaving behind an 11-year-old child here. She felt that the system had already become unbearable. She was taken into detention following a conviction for theft, and when she was in Yarl’s Wood, without legal aid and without help and assistance, she decided that it would be easier for her and less traumatic for her 11-year-old son if she just went back to Poland. This Bill is going to bring about thousands more Sandras, thousands more family separations, in completely unjust circumstances.

[Mr Goodwill]

Q We have heard already that we need better law, and obviously this will be an opportunity to have better law. It is interesting to note that when the Home Office director general of immigration enforcement left his post and went public in January, he made the point that our immigration system largely fails to deal with those who are here illegally, and he pointed out that over 75% of judicial review applications made to the administrative court were for asylum and immigration matters. According to the most recent figures that he could get, only 54 of the 8,649 applications actually succeeded.

If, at the moment, the law is being used to actually frustrate the legal process of removing people who have no right to be in the UK, do we need to improve the law to make that work better? I am sure you would agree that it is not unreasonable to expect people who have committed serious criminal offences and have no right to be in the UK to be removed under the law of the land.

Adrian Berry: I believe in the rule of law. I think it is a good thing if we have judicial scrutiny of executive decisions, including deportation, removal and detention decisions, in order to ensure that they are lawful and consistent with the values that we have embedded in our Human Rights Act provisions and in our civil liberties provisions and statutes.

To answer your question directly, a lot of judicial reviews are settled on issuing, because the Home Office realises that it has made a mistake and it compromises on them. The second stage at which they are settled is when permission to apply for judicial review is granted and the Home Office realises that it has made a mistake and it compromises; it settles and pays the costs, on a polluter-pays principle. Very few judicial reviews go the distance to a substantive hearing, so you have to be very, very careful in measuring the data between the number of claims lodged and the number of claims that are determined at a final hearing.

What we do know is that judges routinely grant injunctions against removals, on the basis that they see a point in holding the ring in order to determine the true and lawful position in the situation. Whatever someone has done, all their interests—including the public policy interest in their expulsion and, on occasion, the public policy interest in their retention—are to be weighed up before a lawful decision is made. Judicial review is one check on it, in the absence of a proper full range of appeals, that allows that to take place.

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[The Chair]

Good afternoon, Mr Piper. I am Edward Leigh, Chair of this Public Bill Committee. The Minister and the Opposition spokesman will ask questions. We have only 15 minutes. Minister, would you like to begin?

[Kevin Foster]

Q As you appreciate, Mr Piper, the Bill ends the provisions for freedom of movement in UK law, but we have the European settlement scheme set up to protect the rights of those covered by the withdrawal agreement. Given that we have had 3.5 million applications and 3.2 million decisions, how do you think the process is going?

Luke Piper: First, thank you for allowing me to attend by telephone. In general, it is true that the EU settlement scheme is there to provide people with their status and their rights to live in the UK under the terms of the withdrawal agreement. It is a great achievement of the Government’s to set the scheme up. Our concern is about those that do not apply in time and fail to acquire the status by the deadline of June next year. The worry is that those that miss the deadline will face the problems that some of the previous witnesses have spoken about—the risks to jobs and homes, and access to healthcare, welfare and so forth. Although there have been over 3 million applications to the scheme, it is not a reflection of the numbers of people that have applied or have succeeded, or of the types of status that are under it. This is more about an issue of recognising that there is a potential problem here. Yes, freedom of movement will end and there is a new status that people can acquire, but it is about creating safety mechanisms and ensuring that there is a safe passage for people to move from their old status to their new one. That is what we would like to see amended in the Bill to ensure that that security is there.

[Kevin Foster]

Q Just to be clear, I used the figure of 3.2 million in terms of decisions as well as the figure for applications. Coming on to the social security co-ordination parts of the Bill, do you have any thoughts on those? Are you concerned about the Government perhaps not being able to promptly implement any agreement that we might be able to reach with the European Union on those areas?

Luke Piper: I will defer to the points that Mr Berry made in his presentation previously on the issues of social security co-ordination. Our central concern is that at this stage much of the rights-based provisions of the withdrawal agreement, both under title II and title III, have been delegated away by the Bill and the previous European Union (Withdrawal Agreement) Act to various Ministers, and there is a lot of legislation and regulations that we have still to see to fully understand how those rights and obligations will be implemented.

[Holly Lynch]

Q Luke, your organisation and a number of your members have been clear that you would like some sort of physical proof of pre-settled or settled status. Can you explain to the Committee why that is?

Luke Piper: Yes. There are clear points as to why we feel physical documents will help people in their day-to-day lives. First, it is the No. 1 ask of our members and people that we speak to who are EU citizens in this country. They would like physical proof of their status to live here. It is something that unfortunately has not been followed through.

Indeed, the House of Lords European Union Committee made the point that there are real worries that those without physical proof will face similar problems to those faced by the Windrush generation; there is a risk that they will face discrimination because they do not have physical proof of their status. We also had concerns about the availability of an online status; there may be instances when the status is not available for IT reasons. Also, online systems can be hacked. There are real security risks.

Finally, we also have concerns about the newness of the digital-only scheme. It is essentially being tested on over 3 million people. A digital-only identity system like this has never existed before in the UK, and it is being rolled out for a massive cohort of people. We had rather hoped that there would be an opportunity to trial the scheme substantively before people were pushed into a digital-only set-up. Those are the key reasons why we desire a physical document.

--- Later in debate ---

[The Chair]

I take it that we have on the line Lucy Leon, immigration policy and practice adviser for The Children’s Society. Minister, you have a question.

[Kevin Foster]

Q In your briefing, you suggest two amendments to the Bill related to granting an automatic status. How do you suggest that a child, who may need to rely on a status in some decades’ time, would be able to evidence the status that had automatically been created?

Lucy Leon: I am sorry; the line is really unclear. I heard that you were trying to ask me a question about automatic status. Would you be able to repeat the second part of the question, please?

[Kevin Foster]

You talked about automatic status—granting something under a piece of legislation to someone. Under your suggested system, how, in decades to come, would an adult evidence the status that they were granted as a child?

Lucy Leon: The line is not very clear, so apologies if I have misunderstood the question, but are you asking what it would be like in decades to come if we granted children automatic status?

[Kevin Foster]

Yes. If they had to evidence their status many years later, how would they do it? How would they be able to define their status, as against someone who arrived in March 2021, for the sake of argument, and was not entitled to that status?

Lucy Leon: We have put forward an amendment about automatic status for vulnerable children, particularly those who are in care or are care leavers. We are not just looking to give them automatic settled status; we want local authorities to be given a duty to identify those children, and a timeframe in which they need to be identified and offered settled status. This would enable a financial burden to be lifted and pressure to be taken off the overstretched local authorities that are struggling right now.

We are not suggesting that children do not go through the scheme. We are saying that they still need to go through the scheme, but should be given indefinite leave, as opposed to pre-settled status, because children are falling through the net and social workers are struggling to understand their roles and responsibilities under the scheme. They do not know the processes, and they are struggling to locate documents for young people.

[Kevin Foster]

Q To be clear, your suggestion is that these children should go through the European settlement scheme to get the evidence they need, and in essence, your point is about how local authorities apply.

Lucy Leon: Sorry, it is really hard to hear you. The line is really not very clear.

[Kevin Foster]

Okay, we will leave it there. I think you have made the points that are needed.

[Holly Lynch]

Q On the same subject, perhaps you could explain what engagement The Children’s Society has had with local authorities about this. What problems are local authorities reporting to you that would be overcome if they had an ability to provide those names to Government, with some assurances that those children would be eligible?

Lucy Leon: At the moment, this is a significant burden on social workers. We welcome the guidance that has been issued, the funding that has been put in place, the prioritisation of this issue, and the fact that the Minister has taken time to write to council leads to ensure the issue is seen as a priority. However, we know—because we see it in our frontline services—that the information is not trickling down, and many social workers are unclear about what they are meant to be doing and how to help young people.

In the current pandemic, with helplines and embassies being closed and people being unable to travel, it has become even harder for social workers to support young people in locating the right paperwork to help them through this process. Social workers are also not always aware of who needs to apply, and some of the cases are very complex. Some children and young people are entitled to British citizenship, and the struggle to access legal advice and helplines at this time has made that very problematic for social workers. We see the proposal as not only taking the pressure off local authorities, but taking the stress off young people.

We see young people who have been incorrectly given pre-settled status, when they are entitled to settled status. We want to enable automatic settled status at this pivotal moment in young people’s lives, when they are planning their future, thinking about their education and thinking about pathways to work, so that they know that they can have indefinite leave to remain and can stay in this country, which is their only home. We are talking about children in care who would have had a history of abuse and neglect. It is imperative that, as corporate parents to those children, we give them as much stability as possible in the long run.

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[The Chair]

Good afternoon and welcome to our session. We have until 5 o’clock. Would you like to introduce yourselves for the record?

Alison Harvey: My name is Alison Harvey. I am a barrister at No5 Chambers in London.

Ian Robinson: I am Ian Robinson. I am a partner in Fragomen, the immigration law firm.

[Kevin Foster]

Q I should like to ask both witnesses this. Part of the process of moving to a single migration system, which the Bill sets the framework for, is to simplify the immigration rules. Do either of you have any thoughts about how it goes towards doing that?

Alison Harvey: Essentially, it does not have anything to do with that. There has been a lot of talk about the Bill setting up the new points-based system. It does not; it gets rid of the free movement law, and that is all it does. Although I have not sat on it yet, the Bar Council has appointed me its representative to the simplification committee on the rules, and I gave evidence to the Lords Constitution Committee about this a while ago.

If you look at what the Law Commission and the Home Office have published on the rules, it is simpler but not simple. We will not get to a simple system or anything like one until we consolidate the primary legislation. Let us remember that our immigration legislation is built on the Immigration Act 1971, which came into force on 1 January ’73, when we joined the EU. Before that, we had only had four years in this country, in all its history, without free movement. If you go back to 1066 and beyond, you have everyone within the King’s allegiance and dominions moving freely within the allegiance and dominions, subject to the limitations in place in 1066, but they were not legal limits. The passport that you have from Hull is the same as the passport that you have from Bangalore.

We then had the Commonwealth Immigrants Act 1968, which cut off free movement, but we were bigger then. As well as our current overseas territories, we had the associated states in the Caribbean, from which people came. That period of March 1968 to 1 January 1973 is the only period in our history when we have been as small as we are going to be from June, so the change is massive.

We are managing with a rickety old Act that desperately needs changing. The problem with immigration law is that every time you change it, you have to deal with the people under the old regime and make transition provision, so change always results in complexity.

Ian Robinson: The simple answer is that we are going from two immigration systems to one. Right now, we have reasonably simple arrangements for free movement and complex arrangements for non-Europeans. We will have one complex arrangement for everybody. In some areas, it will become slicker, I suppose, but it will remain complex.

In an international context, my clients will quickly recognise that the UK has a simpler, more transparent immigration system than many countries. That is great if you are a multinational, but if you are a small or medium-sized enterprise dealing just with the UK immigration system, that does not really help you, and the complexities can still trip you up. Likewise if you are an individual.

[Kevin Foster]

Q Do you have any particular thoughts on how businesses will engage with this system?

Ian Robinson: In terms of the skilled part of the system, we will have one of the better skilled immigration systems in the world, in terms of much of the policy and the speed as it relates to skilled people. Where that falls down is the cost. I suspect that there will be more questions about that later, and I can cover them. We are wildly more expensive than other countries. What businesses want is speed. Singapore and one or two central African countries aside, no one can issue visas as quickly routinely as the UK does. We are very good at that. There are on-entry arrangements in Canada, but we are very good at issuing visas.

If I were talking to an American or Canadian audience, they look for predictability. We can offer certainty. It is a fairly tick-box, prescriptive list for a work permit, which is good. In that respect, it is a good system. It becomes more difficult again when you look at cost. It becomes difficult when you look at lower-skilled workers and the fact that the tap will be turned off, unless we have a youth mobility scheme.

My clients are not quite sure where they stand on that at the moment. On the one hand, if you had asked me three months ago, they were very concerned. Covid changes things, but they are nervous about taking the gamble now that there will be enough people in the labour market after the pandemic is cleared.

The final point that I would make is that if you are an established user of the system, used to working with Indian, US and other non-European migrant workers, you are going to experience a much better immigration system when we have a lower skill level, marginally lower salary, and one or two other changes, particularly when the new technology comes in for sponsorship.

But if you have never used the immigration system in that way before, and if you do not already have a licence, there is a real risk that you will have no idea and no time at the moment to apply for a licence. You probably will not have before the end of the year, so you will realise you need to too late, at which point, unless a concerted effort is made not only by the Home Office, but by trade bodies to push employers to apply for licences, we will be back to six-month delays before a company can even begin to make a visa application, which is not great. Steps need to be taken to make sure that employers know what will be expected of them, and that they can, as easily as possible, get the tier 2 sponsor licence.

[Kevin Foster]

Q I have a brief question for Ms Harvey, given the provisions in the Bill about Irish citizens. We are providing a clear provision for Irish citizens. I note your own background and work on that area, so I wonder whether you have any particular comments on those provisions.

Alison Harvey: You have heard this afternoon—I did not manage to hear his evidence—from Professor Ryan. He has a grasp of the issue that is second to none. Clause 3ZA is very useful and important. I do think that it lowers the protection from deportation for the Irish. The Irish do not deport Brits at all. I think we ought to address that.

My own work has been around giving effect to the Good Friday agreement in the work I have done for the Irish Human Rights and Equality Commission and the Northern Ireland Human Rights Commission about looking at the Good Friday agreement. I would like to see, as a bedrock that would deal with some of the concerns about deportation and the question of identifying solely as Irish, a right of abode given to all the people of Northern Ireland, whether they identify as British or Irish or both.

A right of abode protects you from deportation. It is as close as you get to citizenship. You get the whole packet of rights. From the point of view of the Administration, the Government, the country, and the people in benefits offices, if you know that if you were born in Northern Ireland, you have a right of abode in the UK, it becomes much less problematic whether you identify as British or Irish or both. You essentially know what your social security entitlements and your health entitlements will be. I think that is the bedrock on which we build the flexibility in identification.

[Kevin Foster]

Briefly, because I am conscious that others want to come in, there has been mention of the deportation of Irish citizens. Can you think of an example—not of an extradition, I have to say, because that is a different provision?

Alison Harvey: An example where someone was deported?

[Kevin Foster]

An example where an Irish citizen has been deported from the United Kingdom or Northern Ireland.

Alison Harvey: I was looking at this recently for an article and I think there were examples at the time. I think they fall parallel with the Prevention of Terrorism (Temporary Provisions) Act 1974, where we were confining people to Northern Ireland or to Britain or not letting them in, so you have rules on third-country nationals, but they also have the potential to affect citizens of the two countries. It was in that period, and there was an overlap between the security powers that were being used at the time with the roll-over of the Prevention of Terrorism Act and the control orders and deportation—

[Kevin Foster]

They are historical pieces of legislation.

Alison Harvey: Yes, they have totally gone now.

[Holly Lynch]

Q We have heard evidence this afternoon from other witnesses regarding their concerns about some of the Henry VIII powers in the Bill. May I ask you to share your thoughts on those, and what they mean not only for parliamentary democracy, but for practitioners of law? Do you have concerns about them?

Alison Harvey: Very much the concerns that Mr Berry expressed about certainty. If it is said that provisions of retained EU law are not compatible with the Immigration Act, please can we have a list? Tell us what they are. You must know, Home Office, otherwise you are not going to be able to operate the system. As he said, we had the European Union (Withdrawal) Act 2018 and the European Union (Withdrawal Agreement) Act 2020, both of which essentially give us powers to save EU law. They also give us powers to knock out retained EU law bit by bit, so what is the point of the Bill at all, in substance terms?

I think the point must be, because immigration is a sensitive area and because it involves people, to give you the opportunity to put in place safeguards. I suppose the Bill goes beyond the European Union (Withdrawal) Act and the European Union (Withdrawal Agreement) Act in that it would allow you to build a new system. There are wider powers of delegated legislation. I think most of the repeals could have been done under those Acts. If you want to test that, you go back to March, when the Immigration, Nationality and Asylum (EU Exit) Regulations 2019 were passed. Look at some of the things that they do: “Let’s give all Gibraltarians a right to apply for British citizenship.” There are big chunky powers in those regulations that are not in the Bill.

The Bill is an opportunity to put some brakes in. What is astonishing is that the Bill looks almost the same as it did last time it appeared; yet last time we did not have a withdrawal agreement. All the wait and see markers that justified not putting something in primary legislation have gone. Similarly, although the Home Office delegated powers memorandum has got longer it has produced, for example, absolutely no more substance on why the powers on fees are needed. The Delegated Powers and Regulatory Reform Committee said that this is so unsubstantial you cannot even say it is a skeleton.

There really is no justification to explain why there possibly need to be those powers. It creates tremendous uncertainty. It certainly creates lots of opportunities for litigation; to go in and argue that, no, something is not incompatible. That does not seem to me helpful at all.

Ian Robinson: Alison has said everything that I could and more.

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

Kevin Foster Excerpts

2nd reading & 2nd reading: House of Commons & Money resolution & Money resolution: House of Commons & Programme motion & Programme motion: House of Commons & Ways and Means resolution & Ways and Means resolution: House of Commons
Monday 18th May 2020 Commons Chamber

[The Parliamentary Under-Secretary of State for the Home Department (Kevin Foster)]

It is a pleasure to formally welcome the new shadow immigration Minister to her post; I have not had the chance to do so before at the Dispatch Box.

The breadth of views expressed by Members today clearly demonstrates how important an issue this is, not only to our constituents but personally. Given the unusual circumstances in which we meet, I will not have time to give a detailed response to each point raised, but will seek to respond to the broad themes that have been brought out in the debate.

The Bill is before the House not only to deliver on our manifesto pledges, but to lay the framework for our new immigration system, which will be fairer because we will treat people from every part of the world equally, while respecting our historic links with Ireland and the Belfast agreement, and firmer, because we will have control of our own borders from 1 January and all migration policy will be in the hands of this Parliament. It will be skills led, because the system will be based on the skills, talents and qualifications that people can bring to this country, not two radically different systems based on where someone’s passport comes from.

Let us be clear: this is a framework Bill, not an immigration shopping list. In response to some comments, especially from those who wish to build an economic version of Hadrian’s wall, I emphasise that this Bill sets up the framework for a single, global points-based migration system, with the rights of Irish citizens protected and ensuring the ability of Ministers to respond to any agreement on social security co-ordination.

The detail of our migration rules will continue to be set in secondary legislation, to ensure that they remain flexible and able to respond to changing situations but always based on the key policy principles I have outlined. The reaction to the coronavirus emergency shows why that is necessary. Imagine our having to pass primary legislation to amend visa end dates, automatically renew NHS workers’ visas, grant waivers to in-country route-swapping conditions or allow tier 4 sponsors to move courses online. Hence this Bill, in common with those on this subject that came before it, does not replicate the immigration rules in statutory form, and neither should the House regret its not doing so.

We have already moved to create the first part of our new migration system with the creation of our global talent route. I saw at first hand at Glasgow University what this could result in and the strong offer it presents, clearing the path for some of humanity’s most complex problems, such as the fight against malaria, to be solved by teams recruited on a global basis and based here in our United Kingdom. The new graduate route, which will be introduced next summer, will help to retain some of the brightest minds coming out of our universities, giving a simple path to future residence and settlement. As our universities see an increasing number of international students arrive to study here, we know that more will be inspired to make their life and career in vibrant locations such as Glasgow, Belfast, Exeter, Cardiff and Coventry. Our immigration system should allow them to do so.

I hear the frustrations of those who see our migration and humanitarian protection system being abused by those who engage in human trafficking—as highlighted well by my hon. Friends the Members for Dover (Mrs Elphicke) and for Hastings and Rye (Sally-Ann Hart) —and the risks being run by those using small boats to cross the channel. A key part of ensuring a fairer system is to tackle that type of behaviour. My hon. Friend the Minister for Immigration Compliance and the Courts is leading work on that, which is benefiting from the input of my hon. Friends.

The Migration Advisory Committee report earlier this year provided a strong and evidence-based view for our future points-based migration system. We accepted its key recommendations: a reduction in the general salary threshold for the key skilled worker visa from £30,000 to £25,600; moving the skills threshold from degree to A-level, to ensure that we include those with significant skills levels, such as senior carers; and tradable points, with a salary floor of £20,480 for jobs on the shortage occupation list or where significant potential is shown by holding a relevant STEM-based PhD. We are working hard to bring the new system into effect, and I thank the teams in the Home Office who have continued doing this in the extraordinary circumstances we have found ourselves in over recent weeks.

We will continue to work closely with the Migration Advisory Committee and its interim chair, Professor Brian Bell. My right hon. Friend the Home Secretary has already commissioned the Migration Advisory Committee to advise on the future shortage occupation list. Its call for evidence has now been issued, and that will provide an opportunity to look at the skills needs of a range of sectors that Members have highlighted today. I encourage all businesses to take part and have their voice heard; no one should allow themselves to be silenced. Several Members have been keen to highlight groups with whom I can speak about this. For example, I look forward to a video conference with seafood businesses in north-east Scotland arranged by my hon. Friend the Member for Banff and Buchan (David Duguid). I know he shares my passion for ensuring that the new migration system serves our whole Union and the skills needs of Scottish businesses, rather than the political aims of Scotland’s separatists.

Talking of serving the needs of our nation, no organisation has done that more than our NHS and social care services over recent weeks. Our new system will not just allow but actively welcome a range of health professionals to the United Kingdom. This will be via not only the points-based system being based on national salary scales for roles such as doctors, nurses and physiotherapists, but an NHS visa, which includes discounted fees and fast-track application processes for those with a job offer from our NHS or for those providing services to it. This process will build on the dedicated team that the Home Secretary has already established in UKVI to process applications from those with NHS job offers. Our social care sector will benefit from simpler processes to recruit qualified medical staff and key roles such as senior carers on a global basis.

One area that has been regularly queried in the debate is our acceptance of the MAC’s recommendation that there should be no general route for employers to seek to employ temporary or permanent employees on the legal minimum wage with limited training and no requirement to speak a basic level of English. I gently say to Members that if the lesson they have taken from the events of the last two months is that paying the legal minimum to those working in social care who migrate to the UK from low-pay economies is the right approach, they have drawn the wrong conclusion. Similarly, those who think that the migration system is the go-to option for recruitment issues in social care, rather than creating career paths and increasing the value of such roles, should read the MAC’s specific rejection of this.

No one can deny the economic impact that the measures necessary to deal with the coronavirus will have. Many of our friends and neighbours will need to find new employment opportunities, and it is therefore vital that our migration system aligns with this goal, rather than providing an alternative to it. I have welcomed speaking to my hon. Friend the employment Minister about how we can ensure that our goals align and that those seeing migration as their first port of call are instead steered to the efforts being made to get UK-based workers back into employment and to the Disability Confident scheme, which helps to get unique talents into the workplace. There will still be some flexibility. For example, there is provision for the further expansion of our youth mobility schemes, through which 20,000 young people come to the UK for a period of work and travel each year, along with the adult dependants of those who come as skilled workers, who can also access the employment market. However, we will not create a minimum wage general migration route.

Alongside creating our new points-based global migration system, we are also taking the chance to work on a long overdue simplification of the immigration rules. I am grateful to the Law Commission for its thoughts on this area of work, and we will take most of them forward as we create the new system. Many will not be headline-grabbers but changes that will make it easier for those who need to use our immigration system to both understand the requirements and to comply with them. This will sit alongside moves such as the abolition of the resident labour market test, which will make it easier for employers to recruit skilled labour, and will remove some of the bureaucracy and time associated with doing so.

Finally, it was predictable that some would use this debate to re-fight the battles of Brexit, despite the clear result in the recent general election. The Bill delivers one of the key commitments that the Government made: a single global migration system. However, we are also delivering on our pledge to protect those who have moved here and made their life here in good faith under the current arrangements. The European settlement scheme is the largest documentation of immigration status in UK history. More than 3.5 million applications have been received, with more than 3 million decisions made, and only a tiny number of refusals by comparison. I am afraid that those calling for systems where rights are granted but not recorded do not seem to have learned the lessons of the past. The European settlement scheme means those entitled can prove their status easily for the rest of their lifetimes, while also ensuring that those who arrive in years to come cannot abuse the scheme’s provisions.

We recognise that immigration is vital to the social, cultural and economic life of this country. The new system will aim to create global equality of opportunity, giving everyone the same chance to live and work in this country. The Bill is the first step in ending free movement, establishing a fair and equal immigration system and upholding the scientific and commercial excellence of our country. Above all, it will help us to build a better future for this country and its people as we rebuild after the impact of covid-19. I therefore commend the Bill to the House.

[Mr Deputy Speaker (Mr Nigel Evans)]

Before I put the Question, I confirm that my final determination is that the Question on Second Reading should be decided by remote Division. There is therefore no need for me to collect the voices, or for those present in the Chamber to shout Aye or No.

Question put, That the Bill be now read a Second time.

The House proceeded to a remote Division.

Immigration Rules: Simplification

Kevin Foster Excerpts

Wednesday 25th March 2020 Written Statements

[The Parliamentary Under-Secretary of State for the Home Department (Kevin Foster)]

This Government are committed to creating a firm and fair immigration system that prioritises the skills people have to offer, not where their passport comes from, and restores public trust by ensuring the immigration system truly works for this country.

The immigration rules form one of the foundations of our immigration system. So I am pleased today to publish our response to the Law Commission’s report and recommendations on simplifying the immigration rules. I am extremely grateful to the Law Commission for their detailed and constructive work.

The first recommendation from the Law Commission is we should overhaul the immigration rules, consolidating and streamlining, based on the principles it has identified. I am pleased to announce we accept this recommendation. Our aim is to complete this overhaul by January 2021.

Simplified rules will be at the heart of Britain’s new, global points-based immigration system.

For far too long, users have struggled to understand the confusing and complex immigration rules. They create barriers for employers who want to bring skilled workers to the UK; to colleges who want to encourage international students to come to the UK, and to the brightest and best migrants from around the world who want to make a contribution to the UK.

We will cut through the complexity and make the rules clear, consistent and accessible, to encourage those who have the skills or talent to benefit the UK, and to crack down on illegal migration and remove those who abuse our hospitality by committing criminal offences.

In line with the Law Commission’s recommendations, I have already established a Simplification of the rules review committee to look at the drafting and structure of the rules. The committee will ensure the simplification principles put in place now continue to apply in future, while providing ongoing support to continuously improve and adapt the rules in our changing world.

The Law Commission made 41 recommendations for change. We accept 24 of the recommendations, and partially accept the other 17 recommendations. Where we have not fully accepted a recommendation that does not mean we disagree with the ambition behind the recommendations; it generally means we want to explore how it can be delivered in practice.

Simplification of the immigration rules, the global points-based immigration system, and the Immigration and Social Security Co-ordination (EU Withdrawal) Bill which will end free movement, will deliver the biggest shake-up of the immigration system in a generation.

The Government’s response has been published on gov.uk and can be found at: https://www.gov.uk/government/publications/simplifying-the-immigration-rules-a-response.

A copy of the response will also be placed in the Libraries of both Houses.

[HCWS186]

Windrush Compensation Scheme (Expenditure) Bill

Kevin Foster Excerpts

Tuesday 24th March 2020 Commons Chamber

The compensation scheme is important, but Ministers should not labour under the delusion that it draws a line under the iniquitous injustice of Windrush. Ministers should also not labour under the illusion that it is some act of charity. This is a scheme providing long overdue compensation for a cruel and unjust fate that befell a generation who came here with the best of intent to help this country in its time of need after the war.

[The Parliamentary Under-Secretary of State for the Home Department (Kevin Foster)]

I thank the right hon. Member for Hackney North and Stoke Newington (Ms Abbott) and the hon. Member for Cumbernauld, Kilsyth and Kirkintilloch East (Stuart C. McDonald) for their constructive speeches and thoughts. As the shadow Home Secretary just reflected, we are talking about people—particularly those who came here before 1973—who are British. They are British, they viewed themselves as British, and then they had a reminder of some of the prejudices they experienced when they first arrived. The scheme is not about granting people citizenship but confirming the status they always had. When we debate this issue, we always need to make the point that we are not granting them citizenship; they had it and have done for nearly 50 years.

I am grateful for the opportunity to discuss the amendments and new clauses, which I will go through in turn. I hope to give clear assurances to the Members who tabled them on some of the issues raised and how they formed part of our thinking during the development of the compensation scheme. I will start with those tabled by the Scottish National party before turning to the official Opposition. Amendment 1 would pave the way for the new clauses that would modify the Windrush compensation scheme before final payments are made. I also recognise that amendment 2 intends not to prevent any interim payments from being made. It has always been our priority to ensure that payments are made as quickly as possible rather than only at the final resolution of a case.

New clause 1 would move the operation of the Windrush compensation scheme out of the Home Office. I understand hon. Members’ well articulated concerns about the Department that caused the issues facing these individuals deciding on their eligibility to receive compensation. The Home Office is determined to learn the lessons and right the wrongs experienced by the Windrush generation. I reassure the hon. Member for Cumbernauld, Kilsyth and Kirkintilloch East that the compensation team is working hard to ensure that people get the compensation they deserve. As my right hon. Friend the Home Secretary said to the House last week, we will continue to do everything possible to ensure that the Home Office protects, supports and listens to every single part of the community it serves.

I also noted the request for a substantive debate on the lessons learned review. If I recall correctly, when the Home Secretary was at the Dispatch Box last week, she indicated that we would almost certainly look to do that at future moment when we are not constrained by the circumstances around this debate.

[Ms Abbott]

Is the Minister happy with the very low level of pay-out from the Windrush compensation scheme thus far?

--- Later in debate ---

[Kevin Foster]

No, I want to see more getting the compensation they are entitled to. That is why we are bringing the Bill forward and why we would have looked to have done more engagement events to reach out to those affected, as she touched on in her remarks. That has been inevitably curtailed by the situation we face. We have extended the scheme for another two years—it was to end in April next year, but it has been extended to April 2023—because we want more people to come forward and apply to it.

I will come in a moment to some of the ways in which we are looking to engage and get to more people. Hopefully, the next set of statistics produced will show that, for example, some more significant compensation awards have been made since the first statistics were produced. We are careful not to put out statistics that could identify an individual and what they may have received, because that is not an appropriate way to go about things as a Government.

Let me return to new clause 1. Moving the operation of the compensation scheme from the Home Office would risk significantly delaying payments to claimants. That is because the first stage in deciding a claim for compensation is to confirm an individual’s identity and eligibility, which is linked to an individual’s immigration status. It would be difficult to decouple this process from the Home Office, which is the Department that confirms this status. We have, though, established an independent review process for those dissatisfied with their compensation offer. The independent review is conducted by the Adjudicator’s Office—a non-departmental public body that is completely independent of the Home Office. The adjudicator can look at, among other things, whether the Department has followed its policies and the use of discretion by the Windrush compensation scheme.

New clauses 2 and 4 seek to require the Department to launch public consultations on applicants’ experiences of the application process, and on the scheme’s limits, tariffs and caps. I reassure Members that our approach to designing the scheme was informed by 650 responses to a call for evidence and nearly 1,500 responses to a public consultation. We also held several public events, and the previous Home Secretary appointed Martin Forde QC—an experienced barrister on all aspects of health law—to advise on the design of the compensation scheme. There are 13 categories under which people can claim compensation. The scheme awards compensation according to actual losses, as well as tariff-based awards. Although some categories of award have an upper limit, there is no overall cap on the amount that an individual can receive in compensation under the scheme, nor a set budget limit on payments to be made.

New clause 3 would see the scheme left open indefinitely. Let me reassure the House that this Government are committed to ensuring that all those who wish to make a claim are able to do so. This is why we announced last week that we were extending the duration of the scheme until 2 April 2023. It is also why we announced the launch of a national communications campaign and a £500,000 fund for grassroots organisations to promote the Windrush taskforce and Windrush compensation scheme. However, as I said on Second Reading, there is a balance to be struck between setting a date far enough in the future to enable people to feel confident that they have time to make their claim, but soon enough to encourage people to put in their claim and get the compensation that they are due. The Government believe that the two-year extension provides this, but there remains the option to extend the duration if that is required. I say in response to the point fairly made by the hon. Member for Cumbernauld, Kilsyth and Kirkintilloch East that we would not close off consideration. However, we think it is right to have a timeframe in order to encourage people to come forward and make their claims.

New clause 5 intends to allow applicants to recover their legal costs in applying to the scheme. The team have worked proactively to ensure that the design of the claim forms is simple and easy to understand, and they were tested with users to ensure that legal assistance is not required. The introduction of this clause might serve to encourage organisations to take advantage of potentially vulnerable individuals and to charge them for unnecessary support to complete a claim. Should claimants need support, the Home Office already has provision for a contract with Citizens Advice to provide free independent advice. We will soon be launching a procurement tendering process to select an organisation to provide free independent advice and support to claimants for the duration of the scheme up until April 2023, and the £500,000 fund for grassroots organisations announced last week to promote the compensation scheme includes provision for advice services.

[Stuart C. McDonald]

I take the Minister’s point about the work that has been done to try to make the scheme simple, and to have a tendering process for services that will provide advice. But this is not just about the form; it is about the process of putting together sometimes complicated evidence, particularly for the bigger awards. Surely there is a possibility that the Government could consider making available even a small panel of certain firms with expertise in this area—for particularly difficult or high-value claims. That is just something to think about.

[Kevin Foster]

I hear the hon. Gentleman’s point. That was one of the areas covered when I met the independent adviser, and his advice is clear: he believes that the system is set up in a way that means people do not need specialist legal support to make a claim. The compensation team will work with the claimant to look at things such as HMRC data on past employment and to access Government records—for example, on immigration fees that may have been paid in the past when someone should not have needed to pay them. At the moment, we are satisfied that this gives people the opportunity to engage, and we are keen that this is about working with the person to find out how they were affected, rather than getting into the type of adversarial legal process that could have been the alternative to the approach that we are adopting.

New clause 6 seeks to prevent the Home Office from reducing compensation awards due to criminality or the timeliness of actions to resolve status. In response to direct feedback from claimants and stakeholders, the Home Office has already made changes to the scheme’s mitigation policy. Individuals are no longer expected to show that they took immediate steps to resolve their status, and that was clarified in new guidance published on 5 March.

While it is reasonable to expect individuals who encountered difficulty in evidencing their lawful right to be in the UK to have taken some steps to try to resolve that, the Home Office will now consider any evidence of steps that someone took to resolve their situation, even if those steps were not taken as soon as reasonably practical when an individual lost their job or took place before an individual encountered difficulties. For example, that could include writing to a Member of Parliament rather than approaching the Home Office directly. That change means that some people may qualify for higher awards, particularly where it relates to loss of employment.

With regard to criminality, those with criminal convictions are not precluded per se from making a claim for compensation. However, being mindful of the Government’s obligations towards taxpayers’ money, we may reduce or decline an award if a claimant has a record of serious criminality. I was asked to explain why we would do that. There may be a claim for loss of employment due to a person not being able to show their migration status. If that claimant then had a serious criminal conviction shortly afterwards or during that period, it would not inherently flow that their employment would have carried on but for the migration status issue, because that serious offence would almost certainly have cost them their employment. But as I say, that does not preclude, and it is not a bar. We are always open with this process, as we work with stakeholders and the independent adviser in particular, but that explains why that would be done—because it seems unfair to compensate with taxpayers’ money when that employment may well have been lost anyway following a particular type of conviction.

New clause 7 seeks that no requirement be made of claimants to demonstrate a level of proof beyond the balance of probabilities for claims for actual losses under the scheme. The scheme awards compensation according to both actual losses and tariff-based awards. Evidential requirements have been designed to be straightforward and not too onerous. However, we do ask claimants to provide as much evidence as they can, so that the best assessment can be made. Caseworkers will work with applicants and contact other Government Departments, such as Her Majesty’s Revenue and Customs, on their behalf where there may be evidential gaps. Where awards are tariff-based, caseworkers will make decisions on the balance of probabilities. Where awards are for actual losses, it is right that we seek to obtain an appropriate level of assurance that those losses were incurred, in order to fulfil our duty to properly manage money.

[Stuart C. McDonald]

I ask the Minister to look at that again. I get the point that caseworkers have to be very careful and seek as much evidence as possible when it comes to certain types of losses, including loss of earnings, but to phrase it as “beyond reasonable doubt” seems pretty controversial. All I am asking is that he goes away and thinks about that and perhaps consults Home Office solicitors, because it seems very unusual to demand that standard of proof. I understand the need for evidence, but “beyond reasonable doubt” seems very strange.

--- Later in debate ---

[Kevin Foster]

I thank the hon. Gentleman for his intervention and the constructive way in which it was put. I will give him an undertaking to raise that point with the independent adviser and ask for a response to it.

New clause 8 seeks to allow claimants to appeal to the first-tier tribunal against determinations made under the scheme. As I have outlined, we have already established an independent review process for those dissatisfied with their compensation offer. The first stage is an internal Home Office review by someone who has not been involved previously in the individual’s case, but if the claimant remains dissatisfied, they can request a review by the Adjudicator’s Office, which is a non-departmental public body that is completely independent from the Home Office.

Moving on to the two amendments tabled by the official Opposition, amendment 4 seeks to formally define the Windrush compensation scheme as open to individuals from beyond the Caribbean Commonwealth. I appreciate the thought behind the amendment, but it is not necessary. The criteria for the scheme do not just apply to individuals from the countries of the Caribbean Commonwealth. I accept that there may a need to promote that point a bit more, but, to be clear, that restriction is not there.

[Ms Abbott]

Does the Minister not accept, though, that because the scheme is called the Windrush compensation scheme, some people might assume that it is only for people from the West Indies?

[Kevin Foster]

I very much understand the shadow Home Secretary’s point. Windrush is the name we have for the generation. It is the name that has been in the press. It is the name that the media know, and the name that many of the public would identify with—even though it is a ship that the vast majority of people in the Windrush generation would never have seen, yet alone sailed upon. It has become common parlance. I agree that we need to get the message out there that, although it is called the Windrush compensation scheme, it is not just about those who came from the Caribbean; it is wider. It is for Commonwealth citizens who settled or had the right of abode in the UK before 1 January 1973, plus any person of any nationality who arrived in the UK before 31 December 1988 and is lawfully in the UK or is now a British citizen, and estates of the deceased and others. We intend to continue to promote the scheme and to make sure that more people come forward.

I move on to amendment 5, which seeks to ensure that the impact on family life of people who have difficulties in demonstrating their lawful status is taken into account. There is the ability to award compensation for impact on life, which is awarded on a series of levels, with payments ranging from £250 up to £10,000, where the effect on the claimant was profound and likely to be irreversible.

I hope I have been able to reassure the hon. and right hon. Members who have tabled some well-intended and well-thought-through amendments. I hope they will understand why it would be appropriate to withdraw the amendments.

--- Later in debate ---

[Kevin Foster]

With the leave of the House, Madam Deputy Speaker, I will briefly respond. I appreciate the support that has been given to the Bill, and I wish to thank Martin Forde, QC, the independent adviser. As I said in Committee, we are still open to hearing suggestions as things move on, and we will certainly look to continue to engage with stakeholders to ensure that people get the compensation they deserve. The ability to bid for the funding will be available; it would not be right for me to pledge funding to particular organisations on the Floor of the House. The Black Cultural Archives will have the opportunity to bid into the process, but I hope the hon. Member for Dulwich and West Norwood (Helen Hayes) will understand why it would not be appropriate for me to give lists of groups that may do so, rather than going through the process that is in place. I hope that those who were affected by the Windrush scandal will see the type of debate we have had and see that even in the current circumstances there was a determination to get this Bill through. I accept the shadow Home Secretary’s point that this is not the ideal opportunity to have the longer debate that we will need to have on the Floor of the House at some point about the lessons learned review. I very much appreciate the support that has been given to this Bill by all Members today. Finally, let me wish the right hon. Member for Tottenham (Mr Lammy) a speedy recovery, as I imagine it would have been hard for him to miss this debate, given his passion about this issue.

Question put and agreed to.

Bill accordingly read the Third time and passed.

Oral Answers to Questions

Kevin Foster Excerpts

Monday 23rd March 2020 Commons Chamber

[Neale Hanvey (Kirkcaldy and Cowdenbeath) (Ind)]

5. What support her Department is making available to EU citizens who are unable to use the internet to apply for settled status to continue living in the UK.

[The Parliamentary Under-Secretary of State for the Home Department (Kevin Foster)]

We are committed to giving all EU citizens living in the UK the certainty they need. Last week, I announced that 3 million people have been granted status under the European settlement scheme. We have made available a further £8 million of funding to help vulnerable EU citizens apply. For those who are unable to access the support mechanisms in place, including assisted digital, a paper application form will be made available.

[Neale Hanvey]

I have met a number of constituents and organisations who are providing vital support to vulnerable people applying for EU settled status. Some of the stories they have shared about the difficulties faced by those challenged by an internet-based system, such as people with dementia, are harrowing. While the news that funding to support those groups has been extended until this June is welcome, with a bidding process until June 2021, many vulnerable people are currently only able to secure pre-settled status. They will be required to apply again for settled status within five years. Where should those individuals turn when the funding to support them is cut off?

[Kevin Foster]

As the hon. Gentleman reflected, we are making funding available, and the current grant-funded organisations will continue until the new funding comes in, one of which is Fife Migrants Forum in his constituency. As with any Member, I invite him, once the current situation is over, to visit the team in Liverpool who are dealing with the European settlement scheme to see at first hand the lengths to which they go to ensure that everyone gets the status they are entitled to.

[Ms Diane Abbott (Hackney North and Stoke Newington) (Lab)]

On behalf of Opposition Members, I offer my profound sympathy to the families of the 289 persons who have died in this unheard-of pandemic.

On the settlement scheme, we obviously welcome the fact that 3 million persons have been successfully processed, but Ministers will be aware that the number of rejections is on a rising curve, with 300 last month. That is increasingly because of problems with documentation. Last week, the House debated the Windrush lessons-learned review and one of the problems at that time was documentation. Is it not time that the Government ended the uncertainty hanging over the heads of EU citizens and guaranteed the rights of EU citizens in the UK?

[Kevin Foster]

A very small number has been rejected—just 300 out of over 3 million applications—and the core reason for rejection, for saying no to someone, is criminality. Where there are eligibility issues, people can make a free re-application but the evidence levels are quite basic. People must prove their identity; they must prove that they have residence in the UK, particularly for pre-settled status; and they are subject to the eligibility and suitability checks around criminality. Actually, the system is working very well, and again, I extend an invitation to the right hon. Lady to come to meet the team and see at first hand the work that they are doing and why this has been such a success. It is the biggest documentation of immigration status in history and it is going well.

[Robert Courts (Witney) (Con)]

6. What steps her Department is taking to dismantle the operations of county lines drugs gangs.

--- Later in debate ---

[The Parliamentary Under-Secretary of State for the Home Department (Kevin Foster)]

These are extraordinary times, and we are working hard to ensure that no foreign students are penalised unfairly by these events. We recognise the concerns of the education sector about the impact of covid-19, and we are working with it to mitigate the adverse consequences. We are also working closely with secure English language test providers to ensure that there is sufficient capacity for all those who need to take tests while prioritising the health and safety of staff and applicants.

[Caroline Ansell]

I thank the Minister for his answer. Clearly my question was tabled before we hit the mission-critical phase in our actions to combat the virus, and of course it feels rather discordant to talk today about international travel when we are talking self-isolation and social distancing. But below that there is another really important message—that we will come through this, we will rally and we will rebuild. So can the Minister say what measures are being taken to expedite the process for international students coming to our universities in particular, because it is so vital in towns such as Eastbourne and across the country?

[Kevin Foster]

I recognise the comments my hon. Friend makes, and as she says, at the moment it seems strange to be talking about international travel when we are rightly advising against all non-essential travel within the United Kingdom, let alone abroad. We are very clear that no one will have a negative outcome through the immigration system due to a circumstance that was beyond their control. We have already done a block extension of visas for Chinese nationals, and we are looking at further measures that we can take—for example, allowing in-country switching that we would not normally allow—to ensure that no one is penalised because they followed the advice and did what they could to protect our NHS and save lives.

[Christian Matheson (City of Chester) (Lab)]

8. What plans she has to review police disciplinary procedures.

--- Later in debate ---

[Mr David Davis (Haltemprice and Howden) (Con)]

We probably have more than half a million undocumented migrants in this country—people who, if they fall ill with coronavirus, might be afraid to declare themselves to the health authorities for fear of deportation. The Irish Government, who have the same issue in Ireland, have firewalled their national health service data from other parts of Government. I do not know whether that is the right answer, but will the Secretary of State look at the issue and find a similar resolution?

[The Parliamentary Under-Secretary of State for the Home Department (Kevin Foster)]

The point is well made and we will certainly look at it. No one should fear accessing medical advice from our superb NHS for an immigration reason.

[Sarah Jones (Croydon Central) (Lab)]

Concerns have been raised in Croydon—I have seen them elsewhere—that religious organisations are not adhering to the new guidance about holding their services or not. Indeed, I have seen some people seeing it as an act of faith that they are bold enough to go to their religious services. What more can we do in terms of enforcement and communication to ensure that people are doing what they should?

Draft Private Security Industry (Licence Fees) Order 2020

Kevin Foster Excerpts

Monday 23rd March 2020 General Committees

[The Parliamentary Under-Secretary of State for the Home Department (Kevin Foster)]

I beg to move,

That the Committee has considered the draft Private Security Industry (Licence Fees) Order 2020.

It is a pleasure to serve under your chairmanship, Sir Charles. The draft order was laid before the House on 3 February. Under the Private Security Industry Act 2001, the Secretary of State has the power to prescribe a licence application fee payable to the Security Industry Authority. The order is a financial administrative measure that will enable the Secretary of State to prescribe fees at a level that takes into account past deficits and current costs. The SIA individual licence is valid for three years, and the fee is calculated on a three-year cycle. Based on that cycle, the SIA has a fluctuating income pattern whereby it anticipates a deficit in one year in every three. None the less, the SIA’s fees should meet the full costs of the service. The order will allow the SIA to make a surplus in two of the years to offset the deficit made in the first year, and thereby to break even over the three-year cycle.

As I said, the draft order was laid in Parliament on 3 February, and if accepted and made, it will come into force on 1 April 2020. I commend the order to the Committee.

Immigration (Citizens' Rights Appeals) (EU Exit) Regulations 2020

Kevin Foster Excerpts

Tuesday 3rd March 2020 General Committees

[The Parliamentary Under-Secretary of State for the Home Department (Kevin Foster)]

I beg to move,

That the Committee has considered the Immigration (Citizens’ Rights Appeals) (EU Exit) Regulations 2020 (S.I. 2020, No. 61).

It is a pleasure to serve under your chairmanship, Ms Nokes. The regulations were laid before the House on 30 January and were introduced under section 11 of the European Union (Withdrawal Agreement) Act 2020. They provide the important right of appeal against immigration decisions on citizens’ rights under the European settlement scheme.

The regulations are required to meet our obligations under the withdrawal agreement, the European economic area European Free Trade Association separation agreement, and the Swiss citizens’ rights agreement. The Government have been clear about our commitment to protecting the rights of EU citizens, European economic area citizens and Swiss citizens who have made this country their home. They are our friends, family and neighbours, and we want them to stay. The appeal rights provide further reassurance that those citizens remain welcome and can continue to live and work in the United Kingdom.

The regulations do two things. First, they establish appeal rights against a wide range of decisions that affect a person’s right to enter and live in the UK under the European settlement scheme. That includes those who are refused leave under the scheme, or who are granted pre-settled status rather than settled status, as well as those who are refused entry clearance in the form of an EU settlement scheme family permit or travel permit. The regulations also provide an appeal route for those whose rights are restricted under the scheme, for example if their status is revoked or curtailed.

Secondly, the regulations ensure that existing rules and procedures are applied to the operation of appeal rights. They go further than the withdrawal agreement requires, by providing appeal rights in line with the UK’s more generous domestic implementation. That means that anyone who can make an application under the scheme, including non-EU family members, will have a right of appeal if they are refused status or granted pre-settled status.

Under the regulations, appeals will follow the same process as current immigration appeals. They will be heard by the asylum and immigration chamber of the first-tier tribunal and, with permission, there will then be a further onward right of appeal to the upper tribunal on points of law. The exception is where the decision is certified on national security grounds or where sensitive information cannot be made public. As with current immigration appeals, those cases will be referred to the Special Immigration Appeals Commission. As I am sure the Committee is aware, that is similar to provisions in other areas of immigration law.

The regulations are undeniably complex because of the number of situations requiring a right of appeal under the agreements and the need to apply existing and complex rules on appeal rights. We are committed to making the appeals process as simple as possible for applicants, however. The decision letter will tell them whether they can appeal and will direct them to the relevant information on gov.uk. Support is also available by phone, in person or in writing for those without access to online facilities or who need additional assistance.

The regulations ensure that we comply with the requirements of the agreements and are an essential part of our commitment to protecting the rights of EU citizens. I commend them to the Committee.

--- Later in debate ---

[Kevin Foster]

It has been an interesting debate, and I appreciate the support of Opposition Members. My remit does not quite extend to the Swedish passport system, so I will have to keep my remarks rather limited on that.

I start by responding to the hon. Member for Garston and Halewood. There have been more than 3 million applications and now just over 3 million determinations, and so far we have had 900 requests for an administrative review. While there is no appeal right, people who disagree with a decision can still request that review. With 900 reviews after 3 million determinations and well over 3.2 million applications—I accept that people would not apply for a review until they had got their decision—we felt the number of appeals was likely to be low. Where people have additional evidence, the logical process for them is to make another free-of-charge application to the settlement scheme. As the deadline is June next year, they have plenty of time to do that and get the status they believe they are entitled to. To be clear, if someone reapplies because they think they should have settled status rather than pre-settled status, that does not prejudice the pre-settled status they have been given. I am conscious that Members might ask whether if someone reapplied, it might prejudice the status they had been granted. The answer is no.

For those who applied before 31 January, the way to gain an appeal right is to make a reapplication to the settlement scheme. That is free of charge for anyone; there is no supplementary charge for making another application. We felt that struck the appropriate balance, because an appeal would have a charge to it, and in most cases, if there is a need to present additional evidence, it is easiest to do that through another application. To be clear, anyone who has a right to apply to the EU settlement scheme, including as a Zambrano carer and in the other examples given, may avail themselves of those appeal rights. On legal representation, the position is similar to that for use of appeal mechanisms in other immigration law.

On the system being engulfed, any member of the Committee or of this House who is interested in how the process is going is welcome to pay a visit to Liverpool. We are happy to arrange for people to visit and see what the teams are doing. Hon. Members would see that, far from being engulfed, the teams are working quickly through the largest documentation of immigration status in UK history, providing many people with certainty and assurance.

[Dr Huq]

The Minister pooh-poohed my point about other nationalities. Will he not accept that it is people who are trying to bypass this cumbersome process who are applying for another nationality? Does he not see a causal link there?

--- Later in debate ---

[Kevin Foster]

I would say it is probably slightly more cumbersome and somewhat more costly to apply for another nationality than to apply for free to the EU settlement scheme—to provide basic proof of identity and of having lived in the United Kingdom, which a person could literally do with a letter they have received. When I visited the team in Liverpool, someone was using as evidence a letter they had received about their tax payment from Her Majesty’s Revenue and Customs. That was combined with an identity card and checks on criminality. I should be clear that a very, very small number of people so far have been refused on criminality grounds. EEA citizens have been a valuable part of our community, and we should not define them by a small number of offenders. That letter was being used for pre-settled status, as that person had only just moved to the United Kingdom, but it is a lot easier to apply for settled status than to get citizenship of another country.

Fair points were made about Home Office funding for the 57 organisations not going beyond March. We expect to make an announcement on that very soon, which will provide some certainty for those operations.

[Louise Haigh]

I would be grateful if the Minister could be a little more definite on the timing. Those organisations are laying off people as we speak, which is hindering their ability to reach the most vulnerable groups.

--- Later in debate ---

[Kevin Foster]

Certainly within a week or two, we expect we will be able to confirm the position. The furthest I can go this morning is that it is our intention to continue providing support beyond the end of this month.

A valid question was asked about whether people can exercise their freedom of movement while there is an appeal outstanding. Rights continue when someone has an appeal outstanding. There is no detriment, for example, if a person leaves the United Kingdom to travel; that would not be held against them on appeal.

I have been through the points raised. I am very grateful for the support offered by Opposition Members. I hope the Committee will approve the regulations to ensure that we have an effective system of appeal, based on the principles that we use across our immigration system. We want all EU, EEA and Swiss citizens who live in our country to know that they are valued members of our community, and we want them to stay.

Question put and agreed to.