New Clause 8
Borders, Citizenship and Immigration Bill [Lords]
2:00 pm

Tom Brake (Carshalton and Wallington, Liberal Democrat)

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

Nicholas Winterton (Macclesfield, Conservative)

With this it will be convenient to discuss

New clause 9—Qualifying period to provide education and health protection—

‘(1) A person under the qualifying period shall be treated as a person settled in the United Kingdom for the purposes of all regulations made under—

(a) the Health Services and Public Health Act 1968 (c. 46);

(b) the Education (Fees and Awards) Act 1983 (c. 40);

(c) the Education and Libraries (Northern Ireland) Order 1986 (S.I., 1986/594 (N.I. 3));

(d) the National Health Service (Charges to Overseas Visitors) Regulations 1989 (S.I., 1989/306);

(e) the Teaching and Higher Education Act 1998 (c. 30);

(f) the Education (Student Support) Regulations (Northern Ireland) 1998;

(g) the Learning and Skills Act 2000 (c. 21);

(h) the Higher Education Act 2004 (c. 8); and

(i) the Higher Education (Northern Ireland) Order 2005 (S.I., 2005/1116 (N.I. 5)).

(2) In section 115 of the Immigration and Asylum Act 1999 (c. 33) (exclusion from benefits), in subsection (9) after “EEA state”, insert “or a person with probationary citizenship leave”.’.

Tom Brake (Carshalton and Wallington, Liberal Democrat)

With these two new clauses—the last, I think, to be debated today—we return to the issue of probationary citizenship, which is a matter that we discussed in one of last week’s sittings. I will deal with the new clauses together because they both relate to what constitutes probationary citizenship. The Government’s view is very much that probationary citizenship is not about citizenship, but that it is a stage at which citizenship has not been reached. The new clauses state that probationary citizenship is citizenship that has been achieved but is under probation—if people understand the semantic difference. The new clauses, therefore, are looking at ensuring that assistance is available through local authorities to deal with homelessness—the subject of new clause 8—and looking at what assistance is available and what fees should apply when seeking to access services such as education and health—new clause 9.

As the Minister is aware, under the current proposals a holder of probationary citizenship would be ineligible for 15 different benefits that are available to those with indefinite leave to remain, and overseas rates would apply for further and higher education. That means that people whom we are hoping will soon become citizens of the United Kingdom and whose circumstances will often be difficult will find it hard to afford further and higher education, in particular, and may find themselves unable financially, for example, to access the national health service. It is an issue of principle about what probationary citizenship is, how we should view people who are going through that phase and how they should be treated in comparison with what applied previously in relation to indefinite leave to remain. I hope that the Minister will consider the new clauses carefully.

Damian Green (Shadow Minister, Home Affairs; Ashford, Conservative)

The hon. Gentleman is asking a perfectly valid question. Presumably, the new clauses would, among other things, entitle a group of people to benefits earlier than they would be entitled under the Government’s proposals. I shall ask him the question that he asked me a few minutes ago: what costings will be involved and what will be their effect?

Tom Brake (Carshalton and Wallington, Liberal Democrat)

I thank the hon. Gentleman for that question. I have to be honest and state that I do not have the precise figures. When the Minister responds, perhaps he will set out the projections for such a change. The new clauses still enable us to debate the principle of probationary citizenship and people’s perception of what a probationary citizen should be, matters to which I hope the hon. Gentleman will also respond.

Phil Woolas (Minister of State (the North West), Home Office; Oldham East and Saddleworth, Labour)

I thank the hon. Gentleman for tabling the new clauses because they allow us to explore an area that we did not deal with specifically in our earlier debates. The fundamental tenet of the proposals for the path to citizenship idea is that the rights and benefits of citizens are reserved for those who have earned the right to them——the route that we have discussed before. The  Government recognise the significant contribution to this country both economically and socially that migrants can make. Nevertheless, it has been a long-standing policy that those entering the United Kingdom on the work or family route are expected to support themselves without access to benefits. There are, of course, some caveats to that, particularly in respect of the primary care and accident and emergency areas of public health, where it is clearly in everyone’s interests that that should be the case.

All Members will know the phrase, “recourse to public funds”. It was dealt with in part 6 of the Immigration and Asylum Act 1999 and has existed for many years. People on temporary leave to remain under those routes do not have access to benefit. That view is supported widely and we believe that that policy should be clarified in respect of the probationary citizen proposals, so that everyone is clear that those benefits derive from citizenship but not from probationary citizenship.

For the avoidance of doubt, I want to be clear that such a provision does not apply to migrants on the protection route. They are dealt with separately. It is right, given the special circumstances that led people on that route to the United Kingdom, for them to get access to benefits if asylum is granted. I am not talking about cases in which asylum has not been granted; there are different arrangements there.

The restrictions on access to benefits and services at the probationary citizen stage will apply to migrants on the work route—highly skilled and skilled workers under tiers 1 and 2 of the points-based system. Secondly, the restrictions will apply to those on the family route—that is, family members of British citizens and, slightly different, under the current category of permanent residents. Further, those people on the family and work routes will have full access to national insurance contribution-based benefits on the same basis as others. Those benefits are contribution-based jobseeker’s allowance, contribution-based incapacity benefit, contributory employment and support allowance, retirement pension, maternity allowance and bereavement benefit. If someone has been paying tax and national insurance—they have made a contribution—they are of course entitled to get their money back, to put it in colloquial terms. That will apply with probationary citizenship. What is not applied under our proposals are the non-contributory benefits, which the hon. Member for Carshalton and Wallington is probing and pushing on. We do not believe that to be anti-foreigner in any way. We are putting forward to the probationary citizen arrangements whereby, if people want to become citizens and build a life in our country, they will need to demonstrate through the criteria discussed what is available to them. That does not include the non-contributory benefits.

The proposed new clause gives probationary citizens access to social housing and homelessness assistance in Scotland and Northern Ireland. I am not point-scoring, but it does not do that for England and Wales. I do not know whether that was deliberate, but if it was, I thought it was extremely clever, because it made it more difficult for me, given the position of the Scottish Executive.

The situation at the moment is that, once granted indefinite leave to remain, a migrant gets full access to benefits, subject to the same eligibility criteria as everyone else, apart from the right to vote, if one includes that as a benefit. Currently, an economic migrant will normally  be entitled to apply for ILR after five years in the UK, and a spouse after two years. The benefits available once a migrant is granted ILR include income support, employment and support allowance, housing benefit, carer’s allowance, disability living allowance and access to local authority housing.

Under the earned citizenship proposals, by way of contrast, the economic migrant will access mainstream benefits and social housing, if they are successful, six years after arrival. It may help the Committee if I refer, for the record, to the latest impact assessment, of June 2009, which gives some statistics estimating the range of potential transfers to be in the order of £860 million to £2.1 billion over a 10-year period. I caution against comparison with the earlier figure of £350 million, which if my memory serves me was over a five-year period. The difference reflects that, as time passes, the policy kicks in for more people. The assumptions in the impact assessment are in annexe A, I believe at paragraph 42.

The legislation has got things right, based on the long-standing principle of access to public funds. If such a clause to meet that objective were in place—I may be being unfair, as the hon. Member for Carshalton and Wallington is asking a question as much as making a proposal—the cost would run into significant billions of pounds. Having said that, as everyone who deals with such matters knows, access to benefits is a complex area because one also has to look at the situation of the spouse. The no recourse to public funds test applies to the spouse who may get, or may argue for, access consequential to the arrival of the spouse. That is an important point, which makes the area extremely complex.

Say a wife with children comes from America to live with her spouse in this country and that entitles the family to access to benefits that the father would not get on his own, and so on. There are also examples in reverse. Under our earned citizenship proposals, there are no such complications that I am aware of—I say with my hand on my heart. I hope that the principle behind this is accepted. I believe that it achieved consensus in the other place. I do not think that there was a division on that point.

Damian Green (Shadow Minister, Home Affairs; Ashford, Conservative)

I sense that the Minister is drawing to a close. One thing that has yet again sprung out of this debate is how unfortunate the phrase “probationary citizenship” is. Because of the history of the usage of the word in this country, probation sounds like something given when an offence has been committed. I am sure that before all this eventually passes, it cannot be beyond the wit of Ministers and their officials to come up with a better phrase, such as “qualifying citizenship”. In the scheme of things, that is a relatively trivial point, but the current wording sends out the wrong message, so I hope that the Minister can find another word.

Phil Woolas (Minister of State (the North West), Home Office; Oldham East and Saddleworth, Labour)

I have known the hon. Gentleman for 20 years—we have worked together in different capacities—and he is consistent in his liberalism on this matter. I understand the point that he makes. I have checked the definition of probation, and as he says, it is normally used in the context of someone who is on probation. In Oldham, that means that if someone misbehaves they go back into the clink. Its proper meaning is not punitive although we have not come up with a better term. The  word makes the point that someone is aspiring to citizenship, rather like an apprentice in a workplace who is aspiring to be a skilled worker. In my experience, the apprentice is proud of that title because it implies a self-esteem that is leading to a status and it should be seen in that context. I advise the Committee to look at the word’s literal translation into Urdu, where it does not have the context that the hon. Gentleman asks about. I did check that, although not for any reasons of self-interest, God forbid.

The impact assessment makes its assumptions on numbers that are our best guesstimates based on previous experience of applications for probationary citizenship. I would not want the migration group to take those figures and say that they are our projections of what will actually happen in terms of numbers because it will draw wrong conclusions and probably project the population of the country to be 120 million within five years. I slightly jest, but we can base our impact assessment only on our knowledge so far.

I will not read out the benefits that are affected in the list in front of me because it runs to two pages. However, I hope that I have made the point that it is fair that contributory benefits should be available, but non-contributory benefits should not.

Tom Brake (Carshalton and Wallington, Liberal Democrat)

May I pick up on the point made by the hon. Member for Ashford on whether “qualified” or, possibly “transitional” is a better word than probationary? That is the point I was making about the belief that people have in the person who is seeking to become a citizen. I agree that describing that phase as “probationary citizenship” is regrettable, because it casts doubt on that applicant’s probity. I hope that the Minister can find a different phraseology.

I listened carefully to the Minister. Clearly, it was not the intention that the proposed new clause should apply only to Scotland and Northern Ireland. For that reason alone, I will not press the matter to a Division. He has done a good job of explaining some of the issues relating to the proposed new clauses, and I beg to ask leave to withdraw the clause.

Nicholas Winterton (Macclesfield, Conservative)

I now ask the Minister to move the motion that certain written evidence already reported to the House—

Damian Green (Shadow Minister, Home Affairs; Ashford, Conservative)

On a point of order, Sir Nicholas. I do not believe that we divided on new clause 10.

Nicholas Winterton (Macclesfield, Conservative)

It has already been debated and I was not aware that the Opposition wished to press it to a Division. If that is the case, I am perfectly happy that they have their wish.