Illegal Seaborne Migration

Debate between Tracey Crouch and Caroline Nokes

Tuesday 4th June 2019 Commons Chamber

[Tracey Crouch (Chatham and Aylesford) (Con)]

It is very good of you to notice that, Mr Speaker. I look forward to watching Tottenham on Wednesday nights next season, whereas you, Sir, will have to watch Arsenal on Thursday nights because, as the chant goes, you’re not very good.

I know that my right hon. Friend the Minister is aware of the involvement of the Kent lifeboats, especially the Dover lifeboat, in responding to illegal migration crossings. The crews are mainly made up of volunteers and have been called out on many occasions. Our lifeboats are funded almost exclusively by donations, so these crossings will have impacted on vital funding within the charity. Will she consider requesting extra funding from the Treasury to compensate the Royal National Lifeboat Institution for this particular aspect of its important work of saving lives at sea?

[Caroline Nokes]

As my hon. Friend knows, I had a really informative visit to the Dover lifeboat over the Christmas period, and it was absolutely at the forefront of understanding the channel, the risks and the crossing patterns that were emerging at the time. I was very impressed by the commitment shown by the brave men and women who crew the Dover lifeboat. She makes a valid point, and I would be absolutely delighted to put that request to the Chancellor, although of course I cannot make any commitments. It is important that we not only thank our lifeboat crews, and I would be happy to make that request to the Chancellor.

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

Debate between Tracey Crouch and Caroline Nokes

Tuesday 5th March 2019 Public Bill Committees

[Tracey Crouch (Chatham and Aylesford) (Con)]

I rise briefly to raise a specific issue that a constituent has brought to me, but also to recognise that the Home Office has done a significant amount of work to reduce the time people are in detention. I am sure members of the Committee are aware that 42% of detainees spend between one and 28 days in detention, which is much better than in 2017, when it was only 30%. However, the statistics show that 33% still spend one to three months in detention, and 13% still spend three to six months in detention. I have sympathy with a new clause that limits detention time, although I still need to be persuaded on the issue of excluding foreign national offenders.

From the evidence session and the questions that Tory colleagues asked, I recognise that there is a measure of sympathy on this issue. The hon. Member for Manchester, Gorton was correct when he talked about the impact on mental health, and there are colleagues who recognise that detention has a damaging impact on people’s mental health. Whether there is indefinite detention or a specific time limit is something that still needs to be discussed, although I am aware that in the public health, counter-terrorism and criminal justice systems, where individuals face the possibility of detention without charge, 28 days or lower is considered sufficient time. There is further debate needed as to whether it has to be 28 days, or whether it could be 30 or 40 days. That is an issue we still need to consider carefully.

My constituent Dane Buckley is the support services co-ordinator for the UK Lesbian & Gay Immigration Group and specifically wanted me to raise the issue of detention of lesbian, gay, bisexual, transgender, queer, intersex + people. I am sure that the Minister is aware that in 2016 UKLGIG and Stonewall published research, called “No Safe Refuge”, on the experiences of LGBTQI+ people seeking asylum while in detention. The report highlights the systemic discrimination, abuse and harassment that they face from staff and people who have been detained. It contains shocking examples of acts committed by fellow detainees and staff, and incidents where staff have failed to protect individuals.

In June 2016 the UN special rapporteur on torture and other cruel, inhuman or degrading treatment or punishment, alongside the chair of the UN Committee against Torture and the chair of the board of trustees of the UN voluntary fund for victims of torture, called on member states to redouble their efforts to prevent ill treatment or torture of LGBTQI+ people in places of detention. The ninth annual report of the sub-committee on prevention of torture and other cruel, inhuman or degrading treatment or punishment raised similar concerns, stating that LGBTQI+ people were

“at the bottom of the hierarchy”

in detention. I think we are all acutely conscious of the vulnerability of LGB asylum seekers in detention, and recent court cases have asserted that.

My constituent suggests that detention has a direct impact on the prospects of LGBTQI+ people to claim asylum successfully. To convince the Home Office or a tribunal that they are LGBTQI+ as claimed, asylum seekers must be in a situation of trust and security, in which to consider and discuss their sexual orientation or gender identity. That can be extremely difficult if someone comes from a country where persecution has meant they have never spoken about their sexual orientation or gender identity, or if they have experienced trauma. It can be an impossible task in detention, where fear of discrimination or harassment requires them to conceal their identity as much as possible. In obtaining a legal aid lawyer, people are limited to the specific contractors for each detention centre. With the greatest respect, those advisers do not necessarily have the specialist knowledge required for asylum claims based on sexual orientation or gender identity.

Added to that is the difficulty in amassing the kind of corroborating evidence that decision makers routinely expect when someone is in detention, especially if the person is trying to avoid being outed to staff and other detainees. Home Office caseworkers and decision makers frequently ask, or indeed expect, LGBTQI+ asylum seekers to offer witnesses, including ex-lovers, who will attest to knowledge that the asylum seeker is LGBTQI+ as claimed. Clearly that can be incredibly difficult if the person does not live openly in their home country because of the fear of persecution. An additional issue is the fact that the Government do not keep statistics on the number of LGBTQI+ people who are detained. Perhaps the Minister could address that.

I wanted to raise that particularly sensitive issue of sexual or gender orientation of people in detention on behalf of my constituent and to offer sympathetic support to the idea of making sure there is a time limit on detention, for the mental health and wellbeing of those detained. Whether that is 28 days is a matter that still needs to be bolted down, but I do not personally support including foreign national offenders in that; we still need to consider that further.

[The Minister for Immigration (Caroline Nokes)]

I am grateful to the hon. Member for Manchester, Gorton for tabling the new clauses. I note that they are supported by other right hon. and hon. Members, including other members of the Committee. I am grateful to those who have spoken.

The new clauses raise an incredibly important issue, and I am grateful for the opportunity to speak about immigration detention. We certainly do not take the issue lightly, and we recognise that the deprivation of liberty for immigration purposes is a significant use of state power, with potentially life-changing implications for those involved. It is vital to have a detention system that is fair to those who may be detained, that upholds our immigration policies, and that acts as a deterrent to those who might seek to frustrate those policies. At the same time, the welfare of detainees is a priority for us, and we believe that the use of detention should always be open to scrutiny and, indeed, reform.

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

Debate between Tracey Crouch and Caroline Nokes

Thursday 28th February 2019 Public Bill Committees

[Caroline Nokes]

I thank the hon. Members for Manchester, Gorton and for Cumbernauld, Kilsyth and Kirkintilloch East for tabling amendments to clause 7. Amendments 32, 17, 38 and 39 focus on the commencement of the Bill. Amendment 32 is designed to make commencement of section 1 dependent on the Secretary of State’s commissioning an independent review of immigration legislation, with specific reference to the immigration rules, the public sector equality duty, certain provisions relating to the rights to work and rent, and data processing in the immigration arena.

When we voted to leave the European Union, the Government began a comprehensive review of legislation to identify issues that need addressing as a result of EU exit. I have worked with hon. Friends across the Government, including at the Ministry of Housing, Communities and Local Government and at the Department for Work and Pensions, to ensure that we are adequately prepared for the end of free movement.

The review required by amendment 32 is unnecessary, for several reasons. The Government take seriously their obligations under the public sector equality duty and the European convention on human rights and ensure that all elements of the immigration system comply with them. We will vigilantly monitor such requirements as we manage the transition of EEA nationals from free movement rights to having leave to remain under UK immigration law. In a deal scenario, the withdrawal agreement Bill will also deliver that.

In the unlikely event of no deal, the power in clause 4 of the Bill before us will be used to ensure that any issues arising from the ending of free movement can be adequately addressed, principally by making transitional and saving arrangements for existing EEA residents and those who arrive before the new system commences. For example, the process for EEA nationals to prove their right to work, and for employers to check that right, will not change until January 2021. The design of the future system will similarly comply with human rights and equalities duties.

The immigration exemption at paragraph 4 of schedule 2 to the Data Protection Act 2018 was subject to significant scrutiny in both Houses before it came into force in May 2018. It is a necessary and proportionate measure, which we believe is compliant with the general data protection regulation. It can be applied only on a case-by-case basis in limited circumstances in which complying with a certain data protection right would be likely to prejudice the maintenance of effective immigration control. It is also subject to oversight by the Information Commissioner.

I hope that hon. Members can see that we already take into account the relevant safeguards and human rights considerations, and that the amendment is therefore unnecessary.

Amendment 17 would make commencement of part 1 of the Bill dependent on the Secretary of State’s implementing all recommendations in the Law Commission’s review of the immigration rules that relate to persons losing their free movement rights—namely, EEA and Swiss nationals and their family members. As you may recall, Sir David, from the evidence sessions, when this cropped up, the Home Office worked closely with the Law Commission to discuss the remit of the project back in 2017. We all agreed that that was to be the simplification of the immigration rules. We agreed with the Law Commission that it would use the project to seek to identify the underlying causes of complexity in the rules, and that it would conclude with a report setting out recommendations to improve them for the future. My right hon. Friend the Home Secretary and I are pleased with that approach and look forward to reading the final report.

The Law Commission published on 21 January 2019 an initial consultation paper that seeks the views of consultees on preliminary proposals and asks consultees a number of open questions. The consultation is still open; it will not close until 26 April 2019. After the period of consultation, the Law Commission will analyse the results, and it will not deliver its recommendations until its final report later this year.

I hugely appreciate the research that the Law Commission is doing. I agree, and I believe that I have said in this Committee previously, that the immigration rules, totalling more than 1,000 pages, are too long and can be difficult and complex to use. However, I cannot support an amendment that would commit both Parliament and the Home Office to implementing fully proposals that have not even been written yet. The Home Secretary and I want to simplify the immigration rules and we will consider the Law Commission’s recommendations as part of that process. Also, we will not only consider recommendations that relate to those who, under the provisions of the Bill, will lose their right to free movement. We want to simplify the system for all who come into contact with the immigration rules, not just a specific cohort of people.

Furthermore, it is important for the Secretary of State to be able to determine when certain clauses commence, so that we can cater for specific scenarios linked to our departure from the European Union. For example, we may need to bring these provisions into force at the end of an agreed implementation period in a deal scenario, or sooner in the event of no deal. That may require us to bring clauses in part 1 into force before the Law Commission has had a chance to deliver its final report. I ask the hon. Member for Manchester, Gorton not to press either of his amendments, for the reasons outlined.

Turning to amendments 38 and 39, I thank the hon. Member for Cumbernauld, Kilsyth and Kirkintilloch East for giving me the opportunity to discuss these issues. While the Government’s priority is to leave the EU with a deal, we must continue to prepare for all scenarios, including the possibility that we leave without any deal in March 2019. Amendment 38 would hinder our ability to prepare adequately for that. Conducting the review proposed in that amendment would be likely to take some time, and thus would very likely delay the end of free movement. We received a clear message in the referendum of 2016 that free movement should end, and this amendment would leave us unable to deliver promptly on that in a no-deal scenario.

Furthermore, the Government do not think that such a review is necessary. Under section 6 of the Human Rights Act 1998, the Secretary of State is under an obligation to comply with the European convention on human rights in exercising all his functions, including when making immigration policy, when making specific immigration decisions, and when making immigration rules under section 3 of the Immigration Act 1971. The convention rights are already taken into account each and every time we make or amend the immigration rules. I reassure hon. Members that ensuring the welfare of migrants is at the forefront of our thinking for the design of the new immigration system. As such, I hope hon. Members can see that we already take into account the relevant safeguards and human rights considerations, and that amendment 38 is not necessary.

Amendment 39 gives me the opportunity to restate the importance of the immigration exemption within the Data Protection Act 2018. The immigration exemption came into force in May 2018. It was widely debated in both Houses and reassurances were repeatedly given on the scope and potential use of the exemption. The UK generally processes immigration matters under the EU general data protection regulation, commonly known as the GDPR, because the UK generally treats immigration as a civil administrative function, not a policing matter. We have made a deliberate choice to deal with many immigration offences under administrative rather than criminal sanctions.

If the exemption were repealed for EEA nationals who were exercising free movement rights on the date when part 1 of the Bill came into force, the consequence of this amendment, as drafted, would be to place us in a position where in theory EEA nationals, even though by then subject to domestic immigration law, would be treated more favourably than migrants coming from the rest of the world. I find that situation divisive and discriminatory.

Immigration is naturally a sensitive subject area and a topic of huge importance to the public, to the economic wellbeing of the country and to social cohesion. Being able to effectively control immigration is therefore, in the words of the GDPR,

“an important objective of general public interest”.

The new data protection regime gives broader rights to data subjects, which this Government welcome, but it is also important that we make use of the limited exemptions available to us, so that we can continue to maintain effective control of the immigration system in the wider public interest. We have done that within the parameters set down in the GDPR.

[Tracey Crouch (Chatham and Aylesford) (Con)]

My right hon. Friend is making an excellent speech. That is one of the challenges that we parliamentarians face. It is important to recognise that there are sensitivities around the issue of immigration, but in many respects we have reneged on some of our responsibilities by not having a sensible debate about having a country that is open and welcoming to those who wish to come and live and work here, while at the same time having an immigration system that works for everyone, including those who are here and those who want to come here in the future.

[Caroline Nokes]

My hon. Friend makes an important point. As with so much in immigration, it is important that we get the balance right. I have been concerned that there has been much scaremongering in recent months that the immigration exemption would be used by the Home Office to deny individuals rights in a sweeping way, or as an excuse for not providing reasons for the refusal of cases. That is simply not true.

The exemption as set out in the legislation is not a blanket exemption that can be used to deny rights in a sweeping way; it does not target any particular group or individual. There are very clear tests to be met. The immigration exemption is only applied on a case-by-case basis, and only where complying with certain rights would be likely to prejudice the maintenance of effective immigration control. We must be able to satisfy the prejudice test set out in the Data Protection Act before it can be used. The data subject may assert their rights through the Information Commissioner’s office and the courts, if that individual believes that an exemption has been wrongly applied.

The immigration exemption is entirely separate from measures designed to deal with ending the free movement of EEA nationals. It is a necessary and proportionate measure, which we believe is compliant with GDPR—a regulation introduced by the European Union that applies to all member states. I can categorically assure hon. Members that it is not aimed at EEA nationals and, in compliance with our public sector equality duty, it must be applied in a lawful and non-discriminatory manner. I hope that in the light of these points, the hon. Member for Manchester, Gorton will withdraw the amendment.

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

Debate between Tracey Crouch and Caroline Nokes

Committee Debate: 5th sitting: House of Commons
Tuesday 26th February 2019 Public Bill Committees

[Tracey Crouch]

I shall contain myself.

[Caroline Nokes]

Notwithstanding the brief contribution from my hon. Friend the Member for Chatham and Aylesford, the hon. Member for Stretford and Urmston invites me to delve into the detail, which is what I plan to do. It is right that the Committee pays close attention to the delegated powers in the Bill, which are key to delivering the changes linked to the end of free movement. I am grateful to the Delegated Powers and Regulatory Reform Committee for its report and recommendations on the Bill, which I am carefully considering.

The power in the clause is similar to that found in many other immigration Acts. It is needed for the effective implementation of the Bill and the ending of free movement. A great deal has been said about the power granting Ministers a blank cheque—a slightly 20th century analogy, but one that I have used as well; perhaps I should talk about chip and PIN or contactless—so I want to explain exactly and in some detail how the power can and cannot be used.

I reassure the Committee that, with clause 4, the Government seek to ensure that we can manage the transition of EEA nationals, Swiss nationals and their family members from free movement to our domestic immigration system. For the sake of brevity, I will refer to that group collectively as EEA nationals.

First, the power will enable us to protect the status of EEA nationals and their family members who are resident in the UK before exit day and ensure that their residence rights are not affected by the UK’s departure from the EU. It will enable us to save the operation of otherwise repealed legislation, such as section 7 of the Immigration Act 1988, which relates to the requirement to have leave to enter and remain in the UK, and the Immigration (European Economic Area) Regulations 2016, which implement the free movement directive. It will preserve the position of EEA nationals in the UK before exit day, or in any agreed implementation period, so they do not require leave to enter or remain until the deadline for obtaining leave under the EU settlement scheme passes in June 2021, or December 2020 in the sad event of no deal.

Secondly, in the unlikely event that we leave the EU without a deal, the power will enable us to make provision for EEA nationals who arrive after exit day but before the future border and immigration system is rolled out in January 2021. During the transition period the clause will enable us, for example, to ensure that EEA nationals need only provide their passport or other national identity document as evidence of their right to work or rent, as is currently the case. We need the power to ensure that, prior to implementation of the future system in 2021, EEA nationals can be treated as they are currently, in terms of checking for eligibility for benefits and public services and the right to work and rent property.

The clause is needed to enable us to meet the UK’s obligation under the draft withdrawal agreement, if that is agreed. In the event of no deal, the clause will enable us to implement the Government’s policy in the paper on citizens’ rights in the event of a no-deal Brexit, which was published by the Department for Exiting the European Union on 6 December.

Thirdly, the power will enable us to align the immigration treatment of EEA and non-EEA nationals in the future, so that we can create a level playing field in terms of who can come to the UK. For example, the power will enable us to align the positions of EU nationals and non-EU nationals in relation to the deportation regime, where currently a different threshold applies to the deportation of criminals who are EU nationals.

As I have said previously, we are engaging extensively on the design of the future system, and our proposals were set out in the White Paper. The details of the future system will be set out in the immigration rules once they have been agreed, but without the power in the clause we cannot deliver the future system, and that is why it is crucial to the overall implementation of the Bill.

Fourthly, the power is important to ensure that our laws work coherently once we have left the EU. There are references across the statute book to EEA nationals, their free movement rights and their status under free movement law. The power needs to be wide enough to ensure that all such references can be adequately addressed as a consequence of ending free movement. By way of example, section 126 of the Nationality, Immigration and Asylum Act 2002 lists the documents that must be provided in support of various types of immigration application. One example relates to applications under the Immigration (European Economic Area) Regulations 2016. An amendment is needed to remove that reference, because in the future there will no longer be applications under the EEA regulations, as they are repealed by the Bill.

Amendments 1 to 5 were tabled by the hon. Member for Cumbernauld, Kilsyth and Kirkintilloch East. As he explained, amendment 4 would limit the Secretary of State’s power to make regulations to instances where it was “necessary” rather than “appropriate”. I reassure the Committee that the clause is not a blank cheque. The regulations could be used only to make provision in consequence of or in connection with part 1 of the Bill. That means that they could be made only in connection with the end of free movement or the status of Irish citizens. They must be appropriate within that context, so the scope of the power is already limited, even without it being limited to what is necessary.

Not only is the test for what is necessary harder to meet; it is also harder to say whether it is met. To explain why I regard “necessary” as too high a bar, I refer to the courts, which have said that the nearest paraphrase is “really needed”. Such a test would be too restrictive: one person’s necessary amendment is another’s “nice to have”. Immigration is a litigious area and we do not want a provision that will lead to uncertainty and challenge about whether an amendment is appropriate or necessary. The Committee may recall that that point was discussed at some length during the passage of the European Union (Withdrawal) Act 2018 and that Parliament agreed that “appropriate” was the correct formulation when dealing with amendments in relation to EU exit. It is the right test here also.

Amendment 1 would limit the changes made under the regulations to those that are “in consequence of” the ending of free movement, rather than “in connection with” or “in consequence of”. I note that the amendment was recommended by the Delegated Powers and Regulatory Reform Committee. As I have explained, references to EEA nationals occur in numerous places across the entire statute book and in numerous different ways, not always by reference to free movement rights. The inclusion of “in connection with” is more appropriate to describe the provision that needs to be made for some of those cases. It is also better suited than the phrase “in consequence of” for the making of transitional provision for those who arrive in the UK after the commencement of the Bill.

The Lords Committee made the specific point that transitional and savings provisions for pre-exit day EEA nationals should be made on the face of the Bill. Hon. Members are interested in that and some witnesses discussed it in evidence sittings. We have committed to protecting the rights of EU citizens who are resident in the UK. That has been our priority, and we have delivered it through our negotiations with the EU to secure protections of citizens’ rights, which are included in the draft withdrawal agreement. If that is agreed by Parliament, there will be legislation to implement it in UK law. The withdrawal agreement Bill will be the vehicle by which such protections are delivered. We have also opened the EU settlement scheme to allow EU nationals who are already living in the UK to obtain settled status or pre-settled status in the UK. That will provide them with a clear status once free movement ends and will ensure their rights are protected in UK law.

In addition, we have given unilateral assurances that EU nationals and their family members resident in the UK can stay if the UK leaves the EU without a deal, as set out in the no deal policy paper I previously mentioned. In the event of no deal, we will use the power in clause 4 to make provision to protect the status of EU nationals resident in the UK. One could speculate about whether such protections are necessary or merely appropriate, or whether they are in consequence of the end of free movement or only connected to the end of free movement, but I know that Members of the Committee agree with me that it is important to be able to protect EU nationals, and I want to ensure that the clause is broad enough to enable us to do so.

I am grateful to the hon. Member for Manchester, Gorton for raising an important issue in amendment 11, which would replace part of the power in subsection (4) of clause 4. The power allows us to make provisions applying to persons not exercising free movement rights. The amendment appears to narrow, or perhaps clarify, the power by including reference to the grant of leave to enter.

It may be helpful if I first explain our intended use of the provision. I am aware that there is a perception that clause 4(4) would allow the Secretary of State to make sweeping changes to the immigration system in respect of non-EEA nationals, but I assure the Committee that that is not the case. Subsection (4) does not provide a standalone power; it is part and parcel of the power in subsection (1) which we have previously debated. That means that it can be used only in consequence of or in connection with part 1 of the Bill, which is about the repeal of free movement and the status of Irish nationals. There is no risk that the power could be used to change the immigration legislation for non-EEA nationals in ways unconnected with part 1 of the Bill.

Subsection (4) is needed because not every person who is an EEA national in the UK is exercising free movement rights. EU law sets out the conditions for the exercise of such rights: for example, a person who is not working, seeking work, self-employed or studying can exercise free movement rights only if they have adequate resources and comprehensive sickness insurance. Putting aside any rights as a family member, a German househusband or wife who does not have comprehensive sickness insurance is not exercising free movement rights. We have taken the decision to be generous in our treatment of EU nationals already in the UK and we have opened the EU settlement scheme to them all, regardless of whether they are exercising treaty rights or not. However, we need to ensure that we have the power to amend other legislation to facilitate that—for example, checks on rights to work or access to benefits and public services that might otherwise apply to them. The amendment could prevent us from making those changes, potentially meaning that that group could fall through the gaps.

I reiterate that the power is not the means by which the future border and immigration system will be delivered. That will be done through the immigration rules made under the Immigration Act 1971. I am sure that the hon. Gentleman does not intend that group to be denied protection. I hope I have provided sufficient reassurance on the need for and use of the subsection. I respectfully ask him to not to press amendment 11.

Amendment 2, which stands in the name of the hon. Member for Cumbernauld, Kilsyth and Kirkintilloch East, would narrow the scope of the power by omitting subsection (5). The House of Lords Committee recommended that the Government justify the need for subsection (5) and I am grateful for the opportunity to do so.

The purpose of subsection (5) is to enable changes to be made to legislation that imposes fees and charges. For example, under the EU-Turkey association agreement, Turkish nationals are currently exempt from the immigration health surcharge. The directly effective rights under the association agreement, which will form part of domestic law from exit day by virtue of section 4 of the European Union (Withdrawal) Act 2018, are disapplied by paragraph 9 of schedule 1 to the Bill. That would mean that Turkish nationals would become liable to pay the immigration health surcharge, but we think it appropriate to maintain that exemption for those already resident in the UK.

Another example of how we might rely on subsection (5) is in relation to persons granted limited leave to remain under the EU settlement scheme. As the law stands, they would be considered not ordinarily resident in the UK when their free movement rights end, and they would be liable for charges when accessing NHS treatment. We want to make it crystal clear that those EU nationals already in the UK should not be charged for NHS treatment. Without this provision, we could make such amendments to exempt people from charges that might otherwise apply. I hope that I have provided sufficient explanation of why subsection (5) is needed. I request that the amendments not be pressed.

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

Debate between Tracey Crouch and Caroline Nokes

Tuesday 26th February 2019 Public Bill Committees

[Tracey Crouch]

I shall contain myself.

[Caroline Nokes]

Notwithstanding the brief contribution from my hon. Friend the Member for Chatham and Aylesford, the hon. Member for Stretford and Urmston invites me to delve into the detail, which is what I plan to do. It is right that the Committee pays close attention to the delegated powers in the Bill, which are key to delivering the changes linked to the end of free movement. I am grateful to the Delegated Powers and Regulatory Reform Committee for its report and recommendations on the Bill, which I am carefully considering.

The power in the clause is similar to that found in many other immigration Acts. It is needed for the effective implementation of the Bill and the ending of free movement. A great deal has been said about the power granting Ministers a blank cheque—a slightly 20th century analogy, but one that I have used as well; perhaps I should talk about chip and PIN or contactless—so I want to explain exactly and in some detail how the power can and cannot be used.

I reassure the Committee that, with clause 4, the Government seek to ensure that we can manage the transition of EEA nationals, Swiss nationals and their family members from free movement to our domestic immigration system. For the sake of brevity, I will refer to that group collectively as EEA nationals.

First, the power will enable us to protect the status of EEA nationals and their family members who are resident in the UK before exit day and ensure that their residence rights are not affected by the UK’s departure from the EU. It will enable us to save the operation of otherwise repealed legislation, such as section 7 of the Immigration Act 1988, which relates to the requirement to have leave to enter and remain in the UK, and the Immigration (European Economic Area) Regulations 2016, which implement the free movement directive. It will preserve the position of EEA nationals in the UK before exit day, or in any agreed implementation period, so they do not require leave to enter or remain until the deadline for obtaining leave under the EU settlement scheme passes in June 2021, or December 2020 in the sad event of no deal.

Secondly, in the unlikely event that we leave the EU without a deal, the power will enable us to make provision for EEA nationals who arrive after exit day but before the future border and immigration system is rolled out in January 2021. During the transition period the clause will enable us, for example, to ensure that EEA nationals need only provide their passport or other national identity document as evidence of their right to work or rent, as is currently the case. We need the power to ensure that, prior to implementation of the future system in 2021, EEA nationals can be treated as they are currently, in terms of checking for eligibility for benefits and public services and the right to work and rent property.

The clause is needed to enable us to meet the UK’s obligation under the draft withdrawal agreement, if that is agreed. In the event of no deal, the clause will enable us to implement the Government’s policy in the paper on citizens’ rights in the event of a no-deal Brexit, which was published by the Department for Exiting the European Union on 6 December.

Thirdly, the power will enable us to align the immigration treatment of EEA and non-EEA nationals in the future, so that we can create a level playing field in terms of who can come to the UK. For example, the power will enable us to align the positions of EU nationals and non-EU nationals in relation to the deportation regime, where currently a different threshold applies to the deportation of criminals who are EU nationals.

As I have said previously, we are engaging extensively on the design of the future system, and our proposals were set out in the White Paper. The details of the future system will be set out in the immigration rules once they have been agreed, but without the power in the clause we cannot deliver the future system, and that is why it is crucial to the overall implementation of the Bill.

Fourthly, the power is important to ensure that our laws work coherently once we have left the EU. There are references across the statute book to EEA nationals, their free movement rights and their status under free movement law. The power needs to be wide enough to ensure that all such references can be adequately addressed as a consequence of ending free movement. By way of example, section 126 of the Nationality, Immigration and Asylum Act 2002 lists the documents that must be provided in support of various types of immigration application. One example relates to applications under the Immigration (European Economic Area) Regulations 2016. An amendment is needed to remove that reference, because in the future there will no longer be applications under the EEA regulations, as they are repealed by the Bill.

Amendments 1 to 5 were tabled by the hon. Member for Cumbernauld, Kilsyth and Kirkintilloch East. As he explained, amendment 4 would limit the Secretary of State’s power to make regulations to instances where it was “necessary” rather than “appropriate”. I reassure the Committee that the clause is not a blank cheque. The regulations could be used only to make provision in consequence of or in connection with part 1 of the Bill. That means that they could be made only in connection with the end of free movement or the status of Irish citizens. They must be appropriate within that context, so the scope of the power is already limited, even without it being limited to what is necessary.

Not only is the test for what is necessary harder to meet; it is also harder to say whether it is met. To explain why I regard “necessary” as too high a bar, I refer to the courts, which have said that the nearest paraphrase is “really needed”. Such a test would be too restrictive: one person’s necessary amendment is another’s “nice to have”. Immigration is a litigious area and we do not want a provision that will lead to uncertainty and challenge about whether an amendment is appropriate or necessary. The Committee may recall that that point was discussed at some length during the passage of the European Union (Withdrawal) Act 2018 and that Parliament agreed that “appropriate” was the correct formulation when dealing with amendments in relation to EU exit. It is the right test here also.

Amendment 1 would limit the changes made under the regulations to those that are “in consequence of” the ending of free movement, rather than “in connection with” or “in consequence of”. I note that the amendment was recommended by the Delegated Powers and Regulatory Reform Committee. As I have explained, references to EEA nationals occur in numerous places across the entire statute book and in numerous different ways, not always by reference to free movement rights. The inclusion of “in connection with” is more appropriate to describe the provision that needs to be made for some of those cases. It is also better suited than the phrase “in consequence of” for the making of transitional provision for those who arrive in the UK after the commencement of the Bill.

The Lords Committee made the specific point that transitional and savings provisions for pre-exit day EEA nationals should be made on the face of the Bill. Hon. Members are interested in that and some witnesses discussed it in evidence sittings. We have committed to protecting the rights of EU citizens who are resident in the UK. That has been our priority, and we have delivered it through our negotiations with the EU to secure protections of citizens’ rights, which are included in the draft withdrawal agreement. If that is agreed by Parliament, there will be legislation to implement it in UK law. The withdrawal agreement Bill will be the vehicle by which such protections are delivered. We have also opened the EU settlement scheme to allow EU nationals who are already living in the UK to obtain settled status or pre-settled status in the UK. That will provide them with a clear status once free movement ends and will ensure their rights are protected in UK law.

In addition, we have given unilateral assurances that EU nationals and their family members resident in the UK can stay if the UK leaves the EU without a deal, as set out in the no deal policy paper I previously mentioned. In the event of no deal, we will use the power in clause 4 to make provision to protect the status of EU nationals resident in the UK. One could speculate about whether such protections are necessary or merely appropriate, or whether they are in consequence of the end of free movement or only connected to the end of free movement, but I know that members of the Committee agree with me that it is important to be able to protect EU nationals, and I want to ensure that the clause is broad enough to enable us to do so.

I am grateful to the hon. Member for Manchester, Gorton for raising an important issue in amendment 11, which would replace part of the power in subsection (4) of clause 4. The power allows us to make provisions applying to persons not exercising free movement rights. The amendment appears to narrow, or perhaps clarify, the power by including reference to the grant of leave to enter.

It may be helpful if I first explain our intended use of the provision. I am aware that there is a perception that clause 4(4) would allow the Secretary of State to make sweeping changes to the immigration system in respect of non-EEA nationals, but I assure the Committee that that is not the case. Subsection (4) does not provide a standalone power; it is part and parcel of the power in subsection (1) which we have previously debated. That means that it can be used only in consequence of or in connection with part 1 of the Bill, which is about the repeal of free movement and the status of Irish nationals. There is no risk that the power could be used to change the immigration legislation for non-EEA nationals in ways unconnected with part 1 of the Bill.

Subsection (4) is needed because not every person who is an EEA national in the UK is exercising free movement rights. EU law sets out the conditions for the exercise of such rights: for example, a person who is not working, seeking work, self-employed or studying can exercise free movement rights only if they have adequate resources and comprehensive sickness insurance. Putting aside any rights as a family member, a German househusband or wife who does not have comprehensive sickness insurance is not exercising free movement rights. We have taken the decision to be generous in our treatment of EU nationals already in the UK and we have opened the EU settlement scheme to them all, regardless of whether they are exercising treaty rights or not. However, we need to ensure that we have the power to amend other legislation to facilitate that—for example, checks on rights to work or access to benefits and public services that might otherwise apply to them. The amendment could prevent us from making those changes, potentially meaning that that group could fall through the gaps.

I reiterate that the power is not the means by which the future border and immigration system will be delivered. That will be done through the immigration rules made under the Immigration Act 1971. I am sure that the hon. Gentleman does not intend that group to be denied protection. I hope I have provided sufficient reassurance on the need for and use of the subsection. I respectfully ask him not to press amendment 11.

Amendment 2, which stands in the name of the hon. Member for Cumbernauld, Kilsyth and Kirkintilloch East, would narrow the scope of the power by omitting subsection (5). The House of Lords Committee recommended that the Government justify the need for subsection (5) and I am grateful for the opportunity to do so.

The purpose of subsection (5) is to enable changes to be made to legislation that imposes fees and charges. For example, under the EU-Turkey association agreement, Turkish nationals are currently exempt from the immigration health surcharge. The directly effective rights under the association agreement, which will form part of domestic law from exit day by virtue of section 4 of the European Union (Withdrawal) Act 2018, are disapplied by paragraph 9 of schedule 1 to the Bill. That would mean that Turkish nationals would become liable to pay the immigration health surcharge, but we think it appropriate to maintain that exemption for those already resident in the UK.

Another example of how we might rely on subsection (5) is in relation to persons granted limited leave to remain under the EU settlement scheme. As the law stands, they would be considered not ordinarily resident in the UK when their free movement rights end, and they would be liable for charges when accessing NHS treatment. We want to make it crystal clear that those EU nationals already in the UK should not be charged for NHS treatment. Without this provision, we could make such amendments to exempt people from charges that might otherwise apply. I hope that I have provided sufficient explanation of why subsection (5) is needed. I request that the amendments not be pressed.

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

Debate between Tracey Crouch and Caroline Nokes

Tuesday 26th February 2019 Public Bill Committees

[Tracey Crouch (Chatham and Aylesford) (Con)]

It is no longer a surprise that I rise in sympathetic support of the amendment tabled by the hon. Member for Stretford and Urmston. I am the independent chair of Medway Council’s physical disability partnership board, and with that role come connections to Kent’s physical disability forum. I have campaigned for a long time on some of the issues people with physical disabilities face and on how, through better partnership working, they can have a really productive relationship with the local authorities that serve them.

One issue that has come up in meetings over the last 12 months is shortages within the personal assistant workforce post Brexit. Many people are incredibly anxious about whether they will be able to recruit the team they need to support them in their lives. I have not seen anxiety like this on any other issue. It is not necessarily about the Bill specifically but about the impact of Brexit on this recruitment crisis.

As the hon. Lady stressed, many people simply cannot work, or indeed live anything that resembles a normal life, without their personal assistants. With his permission, I want to reference a concern of a member of that forum called Clive. Clive works full time as a senior campaigner for Citizens Advice and runs the Thanet citizens advice bureau extremely ably. He said at a recent meeting that, four years ago, before Brexit, he advertised for a new personal assistant and received 110 applications, three quarters of which were from EU nationals. Immediately after Brexit, he put out an advert, and instead of 110 applications, he received four, none of which was from an EU national. After placing his latest advert, he received only one applicant, who happened to be an EU national. He is absolutely reliant on good personal care, and he fears there will be an accidental consequence as a result of the Bill’s minimum threshold on this part of the workforce.

Many people like Clive face issues such as those the hon. Lady set out, and I hope the Minister listened to what I thought was her reasonable and sensible speech. This issue is unique, in many respects, among the wider issues around the EEA national workforce, and I hope she will speak to her colleagues in the Department for Work and Pensions who have responsibility for those with disabilities and those in social care who are responsible for personal healthcare budgets. Hopefully, at some point, she will come back with the reassurances that are sought by people such as Clive, who is my constituent and a member of that forum, and by others across the country on the future employment of personal assistants.

[The Minister for Immigration (Caroline Nokes)]

I am grateful to the hon. Member for Stretford and Urmston for providing the Committee with the opportunity to discuss the amendment, which concerns personal care assistants and exemptions from the £30,000 salary threshold for the future skilled worker route.

First, I assure the Committee that the Government wholeheartedly recognise the tremendous contribution made to the UK by those working in social care and in our wider health and care sector. We remain committed to ensuring that the future immigration system caters to all sectors, including our important NHS and social care sectors, and that it benefits the UK’s economy and our prosperity.

The hon. Lady made some important points, which were echoed by my hon. Friend the Member for Chatham and Aylesford, who made some interesting comments, drawing on her experience of chairing the forum in Kent and, in particular, on Clive’s comments. The hon. Member for Stretford and Urmston talked about the increase in disabled people and the elderly living independently, and they are able to do so because of personal care assistants. The hon. Member for Wirral South also commented on changing demographics. We are all very conscious of that and absolutely rejoice in and welcome the ability of both the elderly population and the disabled to live much more independently, but I am absolutely alive to the reality that that is brought about in part by personal budgets and the ability to independently employ a personal care assistant in the way that has been outlined.