Amendment 42

Part of Immigration and Social Security Co-ordination (EU Withdrawal) Bill - Committee (3rd Day) – in the House of Lords at 4:00 pm on 14 September 2020.

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Photo of Baroness Bennett of Manor Castle Baroness Bennett of Manor Castle Green 4:00, 14 September 2020

My Lords, I will speak to Amendment 71 in my name and also to Amendments 42 and 52 in the names of the noble Baronesses, Lady Hamwee and Lady Ludford. They cover parts of Amendment 71 and also Amendment 43, which covers data sharing.

I pay tribute to the campaign group Liberty for its help with my preparation of this amendment and for its support through its unfortunately unsuccessful struggle to see its scope allowed to cover everyone affected by the hostile environment, rather than just those who face being newly affected by it—for whom, as the noble Baroness, Lady Hamwee, said, the digital-only status is likely to create particular issues.

In short, Amendment 71 would introduce to the Bill a series of sunrise clauses that would prohibit the Secretary of State from making regulations to commence the end of free movement until the estimated 3.6 million people newly affected by the hostile environment were exempted. I will continue to use the term “hostile environment” because, as the noble Baroness, Lady Hamwee, said, that is the practical reality and substance of what it is.

I will outline briefly three elements of this. Subsection (2) of the new clause proposed by Amendment 72 would ensure that people have the right to rent a home, receive essential healthcare, open a bank account and hold and use a driving licence. Subsection (3) of the proposed new clause would ensure that all migrants can access public funds, subject to a habitual residence test. Subsection (4) of the proposed new clause would prohibit data collected or held by essential public services being used for immigration enforcement purposes—known in shorthand as a data-sharing firewall.

The noble Baroness, Lady Hamwee, set out some impacts of the right-to-rent element of the hostile environment. It is worth noting that this was the subject of a legal challenge brought by the Joint Council for the Welfare of Immigrants, in which both the High Court and Court of Appeal made factual determinations that it caused discrimination. The High Court went further and found that the discriminatory effects of the scheme could not be justified and made a declaration of incompatibility under Section 4 of the Human Rights Act. In allowing the Government’s appeal, the Court of Appeal said that it was up to Parliament to decide, so the matter has been put back in our hands. This is the first chance that we have had to have another look at the scheme in the light of the stark findings of the courts. It is a chance to remedy the discrimination it is causing. I note that research found that 42% of landlords said that they were less likely to rent to someone without a British passport as a result of the associated penalties.

In October this year, the NHS surcharge will rise to £624 a year. It represents an unjustified double taxation for temporary migrants who already contribute to the NHS through regular taxes. I note that the Government have made a U-turn and decided to remove the surcharge for NHS and care workers. But, following on from my Written Question HL5749, tabled on 16 June 2020, can the Minister confirm for me—either today or in future—whether all those who paid in funds without needing to have been refunded?

We know that many of the lower-paid workers likely to be affected by the surcharge are essential workers, as Covid-19 has made all too clear. Of course, there are both public health and individual health impacts from this. There is an exemption for Covid-19 testing, but it applies only up to the point when a person receives a negative test, at which point charging resumes for any other condition requiring treatment. The risk of a huge bill is likely to be a significant deterrent to people seeking care in a timely way. During this pandemic, that is a significant threat to public health.

Moving on to the banking point of the hostile environment, if a person is in the UK unlawfully, or is believed to be, banks or building societies must refuse them an account, yet bank accounts are an essential part of everyday life these days, particularly for paying for necessities. Of course, it is more expense to live if you cannot pay for many services particularly through direct debit. Denying people access to bank accounts leaves them with nowhere secure to put their money, which in turn leaves them vulnerable to robbery, reliant on cash-in-hand work and at the mercy of payday lenders.

On driving licences, bulk data-sharing arrangements between the Home Office and the DVLA allow them to check people’s entitlement to a licence. However, although more than 4,000 driving licences were revoked in 2017-18, in the previous year—there is no real reason to think that this has changed—250 wrongly revoked licences had to be reinstated, raising serious concerns about the accuracy of the data.

On illegal working, criminalising work and penalising employers for taking on undocumented migrants does not prevent them working; it simply pushes them into the shadow economy, where they are at risk of exploitation and harm. The fear of criminalisation is one of the primary tools used by traffickers to control exploited workers.

We now come to what this proposed new clause would stop applying to the 3.6 million people newly potentially affected: the offence of driving while unlawfully in the UK. Studies have shown evidence of discrimination in the use of traffic stops by police, with disproportionate targeting of black and ethnic-minority drivers. The offence and the search powers that go with it risk people being stopped on unfounded and stereotyped assumptions, resulting in deeply discriminatory stops that do serious harm to police/community relations—something that my noble friend Lady Jones of Moulsecoomb has often raised, as I am sure your Lordships’ House is aware.

On the data protection elements of this amendment, we have a situation in which the exemption from the general data protection regulation and Data Protection Act 2018 is likely to facilitate the development of the status-checking project. Given the quality of Home Office data management, this project is likely to result in people being denied access to essential services.

Proposed new subsection (3) is on “no recourse to public funds”, which I think has been exercised broadly elsewhere in the debate on this Bill. The High Court recently found that part of that policy is unlawful and that current instructions to Home Office caseworkers do not adequately account for human rights obligations. In the context of the Covid-19 pandemic, the effect of “no recourse to public funds” is even more significant. People are forced to continue to work even when it is not safe for them, and all of us, for them to do so. It is clear that “no recourse to public funds” keeps people in destitution, which is simply unacceptable in a civilised society.

Finally, proposed new subsection (4) would ensure that before ending free movement the Home Office is prohibited from processing, for immigration enforcement, data held for health, education, banking, driving, welfare benefits, employment, homelessness, local authority support and policing reasons. This data sharing often occurs without the knowledge or consent of the data subject and in some cases the trusted public servant who initially collected the data. We have seen some truly awful consequences of this. For example, take the case in 2017 when a woman who was five months’ pregnant reported to the police that she had been raped and was subsequently arrested on immigration grounds at a rape crisis centre. It discourages access for children to education, which is crucial to them, their future and rights. We also have the problem of inaccurate data, leading to the wrongful denial of services—as was the case for some of the Windrush citizens.

It may be that the Minister, in responding, notes that the Home Secretary recently announced a review of the hostile environment as part of the Government’s acceptance of the Windrush Lessons Learned Review. That may be cited as a reason not to accept this amendment, but there can be only one conclusion of any proper, independent, robust, evidence-based review of the hostile environment—to scrap it. This is an opportunity for your Lordships’ House to back that scrapping and prevent much further suffering.