My Lords, I will refer to this instrument as the consequential amendments SI. Parliament has approved the Immigration and Social Security Co-ordination (EU Withdrawal) Act 2020, which will end free movement on
The consequential amendments SI is the next step in ending free movement, and completes the legislative changes necessary for this historic act. It is made under the regulation-making power in Section 5 of the Act, the scope of which we and the other place debated extensively during the passage of the legislation. I was pleased to share with noble Lords an illustrative text of the SI in early September.
The SI amends primary and secondary UK legislation as a consequence of, or in connection with, the provisions in Part 1 of the Act, which end free movement and make provisions for the new status for Irish citizens. It amends legislation relating to immigration, nationality, benefits and services. It amends devolved matters where changes are required for an immigration purpose, to reflect the end of free movement.
As noble Lords will have noted, the SI is lengthy, given the breadth of amendments to domestic legislation required. The effect of the legislative changes is to align the immigration treatment of EEA citizens and their family members who are not protected by the withdrawal agreements and the UK’s implementation of these agreements, with that of non-EEA citizens under the UK’s immigration system. Once free movement has ended, newly arriving EEA citizens and their family members will be subject to the same UK immigration law as non-EEA citizens. They will need to meet the requirements of the new points-based immigration system set out in the immigration rules made under the Immigration Act 1971.
The SI provides clear protection for Irish citizens and EEA citizens and their family members who have been granted status under the EU settlement scheme. It also removes references in domestic legislation to the UK’s membership of the European Union and EU-derived law that has been retained by the European Union (Withdrawal) Act 2018, as amended by the European Union (Withdrawal Agreement) Act 2020, at the end of the transition period.
Most of the changes will come into force at 11 pm on
Another exception consists of the various provisions that bring EEA citizens within the scope of the sham marriage and civil partnership referral and investigation scheme. They will come into force on
The consequential amendments SI reflects the repeal of free movement at the end of the transition period, as enacted by Parliament’s approval of the Immigration and Social Security Co-ordination (EU Withdrawal) Act. It makes the statute book coherent, and terminates arrangements relevant to the operation of free movement law in UK legislation, which will no longer be appropriate, while implementing our obligations under the withdrawal agreements. It is an essential step in fulfilling our promise to end free movement. I beg to move.
My Lords, the Home Secretary is a keen proponent of the ending of free movement. One of her recent triumphant tweets coincided with articles in both the Daily Mail and the Daily Telegraph about how outrageous it was that British owners of second homes in an EU country would have to get a Schengen visa for stays of more than three months. I have no idea why they have only just found that out. Of course, they are blaming the nasty, punishing, perfidious EU—although that was the known situation for third countries. There was a certain bitter irony in those reports. They were a salutary reminder that free movement, and its termination, is a two-way street—a curb on the liberties of Britons as well as on those of foreigners. That seems never to have been recognised by Brexiters.
Let us remember the huge contribution that the 4 million or so EEA citizens have made to every aspect of life in the UK, from health and social care, to business, to farming and horticulture, to the arts and much more. The same goes for UK citizens living in EEA countries. I am still reeling from the utter meanness of the Government in refusing to allow UK citizens living abroad beyond March 2022 to decide whether to move back here without facing the same hurdles to family reunion as migrants. I am still amazed that this Government could so persecute their own citizens.
The 64 pages of this complex SI, which Parliament cannot amend, perfectly illustrate the justification for our opposition to the huge and broad powers that the Government gifted themselves in Clause 4 of the Bill, which became Section 5 of the Act. Our Constitution Committee rightly called them “constitutionally unacceptable”.
The SI extends the hostile environment to cover EU citizens, except those who have been granted settled status by
There is much concern, which I share, about the position of EU citizens who have not applied to the settlement scheme by
I would therefore like to ask the Minister very specifically about the compatibility of this SI with Article 18.3 of the withdrawal agreement, in the chapter on citizens’ rights. It says:
“Pending a final decision by the competent authorities on any application … and pending a final judgment handed down in case of judicial redress sought against any rejection of such application … all rights provided for in this Part shall be deemed to apply to the applicant”.
How is this SI compatible with the withdrawal agreement, in denying rights to all those who lack status on
Finally, may I ask about the right to work in the Civil Service? The Explanatory Memorandum seems to suggest that while newly arriving EEA citizens will lose that right from January, some Turkish citizens will retain it. I would be grateful if the Minister could tell me if I have correctly understood that—and if I have, if she could justify why EEA citizens are second class in comparison with Turkish citizens.
My Lords, the title of this statutory instrument is quite a mouthful, even when delivered in the dulcet tones of my noble friend. It has been brought about by the UK’s exiting the European Union and therefore also leaving the free movement of people system, which prevails within the EU. This is a historic step for this country, and it is perhaps worth pausing for a moment to reflect on that. Free movement of people is one of the four fundamental freedoms of the European Union, and it is easy to see why, when devising the single market structure, it was included along with the other three. But it has always been controversial.
Interestingly enough, the person who most accurately put his finger on the problem with free movement of people is Bernie Sanders, the former self-declared socialist candidate for the US presidency. Questioned about free movement in an interview in 2005, he said that that meant
“doing away with the concept of the nation state”.
He is right, of course. The simple fact is that the world has organised itself into nation states. With nation states come borders, and with borders come border controls.
Moreover, if you are not well-off and have few skills, you welcome that. Your country is there to protect you. It is okay if you are Sir Philip Green, who appears to live mostly on a yacht off Monaco; borders do not matter to people like that. But if you are an NHS porter in Darlington, they do.
That is why it surprised many people that the Blair Labour Government bought so heavily into free movement. Noble Lords may recall that they even eschewed the seven-year transition period allowed under the rules, which other European Union countries adopted. That Labour Government also, of course, increased immigration from other non-European sources, for example by dropping the primary purpose rule and by expanding the work visa system. Net immigration, which had been steady at tens of thousands a year and not caused a problem for decades, surged to hundreds of thousands a year.
The results were devastating for some working-class communities. For instance, as Paul Embery, the Labour and trade union activist, writes in his book, Despised, the non-UK-born population of Barking and Dagenham, where he lives, increased by 205% between 2001 and 2011. Local services were overwhelmed; the demographic shifts were rapid and huge. Local papers were filled with complaints but no one listened. When a Labour supporter in Rochdale raised the question of immigration in the 2010 election, Labour’s Prime Minister simply called her a bigot—when, of course, he thought she was out of earshot. The Conservatives promised to do something, and had some initial successes in closing down bogus colleges, for example, but they appeared to run out of steam under pressure from business interests—and, of course, they could do little about European Union immigration, as much as David Cameron clearly tried.
There were two political results from this. The first has been Brexit, which has not been entirely about immigration, but I think that leave leaders would admit that the campaign could not have been won without it. One of the supreme ironies of the Brexit saga has been to listen to Labour and Liberal remainers in your Lordships’ House complaining bitterly about Brexit without understanding how much it was their doing. Secondly, there has been the collapse of support for Labour among the working class—as instanced in the last election, when they realised that, on this issue, Labour was not on their side. The party that was built to represent the working class got only 33% of its vote in 2019, while the Conservatives got 48%. What a shocking indictment of the Labour leadership that is.
It would have been better if Labour, Conservative or Liberal politicians had got a grip on the problem at an earlier stage, and better if the politicians of the European Union had been less dogmatic in their defence of free movement. Now we are closing in on a defining moment in the UK as free movement ends and we move to a new system, as my noble friend has explained, with immigration controls. One can only hope that present politicians of all strands understand the lessons of the past 20 years and listen more to the views of the British people. It is not rocket science.
My Lords, first, I endorse the remarks of the noble Lord, Lord Horam. I agree entirely with everything he said. These regulations just cross the t’s and dot the i’s of the main Immigration Bill, all very well summarised by the Minister. However, the passage of the main Bill did not allow for any serious discussion of a key element —the new points-based system—and the Government still have not found time for the House to debate the issues that this raises, despite the fact that the new system is already open for applications and will come into effect on
As the House will know, the new system for work permits has three broad elements. First, it introduces lower salary and lower skills requirements; secondly, it removes any requirements first to advertise jobs in the UK; and, thirdly, it provides a new route for workers under the age of 26 at remarkably low salary rates not much higher than the national living wage. More generally, it opens the work permit system to the entire world, while excluding most low-skilled workers.
The effect of these changes will be huge. They involve opening approximately 7 million UK jobs to new or increased international competition. Meanwhile, the number of people worldwide who will meet these new requirements runs, literally, into hundreds of millions. Obviously, they will not all come, but the number who do so could be very large indeed. The obvious and sensible course would be to set a cap now, at least initially. Unfortunately, there is nothing in the new Immigration Rules about how such a cap might be introduced, so I hope that the Minister will take the opportunity to comment on this when she winds up.
Finally, the Government have repeatedly promised to “control” immigration. In fact, as I have indicated, the new system is far more likely to lead to a very considerable increase in net migration. For the time being, attention is elsewhere—on Covid and Brexit—but that could well change, to the detriment of a Government who have failed to keep a key promise to an important sector of the electorate.
My Lords, I want to take this opportunity to thank the Minister for her explanation of these regulations, which make a series of changes that the Government describe as necessary following the ending of free movement. Those changes will come into effect at 11 pm on New Year’s Eve.
I regret and am opposed to the ending of free movement, and would like to see a debate take place in your Lordships’ House on the new points-based system. It is important that it takes place and that we fully understand the impact of that system—and the impact that it will have on our wider healthcare and business communities.
Like the noble Baroness, Lady Ludford, I regret the ending of free movement. Having people come into the UK from many countries allowed our society to be enriched and more inclusive. Ending free movement ensures that that inclusivity will be dissipated, which I deeply regret.
In respect of the regulations, I have some questions for the Minister. The Delegated Powers and Regulatory Reform Committee stated in its report in August that
“very significant delegations of power … relating to ending free movement … and … relating to social security co-ordination … have potentially significant implications for EEA citizens in the UK and UK citizens in EEA countries.”
In that regard, does the Minister recognise that those provisions and these regulations will have significant impacts on our health and care services, our agri-food industry and wider business activity in the UK? Have the Government undertaken an assessment of the potential impact of the ending of free movement on our principal sectors, health and social care services, farming and the agricultural community and the various sections of business activity in the UK? Many of the workers involved in those sectors come from other EEA countries and, as a consequence, Britons going to EEA countries could face severe repercussions. Have the Government fully thought out this particular policy? Why were these regulations made according to the affirmative procedure rather than the usual draft affirmative procedure, particularly when it is not possible to amend statutory regulations?
I look forward to the Minister’s answer to those two questions and to how the Government will ensure that the NHS in particular has the human resource capacity to deal with the continued consequences of the pandemic and rollout of the vaccination programme as a result of the implementation of these regulations, which will severely reduce our workforce—but also that particular ingredient of expertise in the wider health and social care sector, among the nursing and medical professions.
My Lords, I thank the Minister for her clear explanation, and I thank my noble friend Lord Horam for his fascinating historical perspective. I agree with all he said and all that was said by the noble Lord, Lord Green, the leading expert in this field.
The bad news is this: the country will expect this Government to bring about a significant reduction in immigration. That is, after all, what they implied they would do. But the current government plans will not bring this about. Accordingly, there is a real risk that this failure, as much of the electorate will see it, will be reflected in voter disillusion at forthcoming elections.
This is a minority view in elite circles and especially in your Lordships’ House. But time will tell. Meanwhile, we need to establish the facts, which successive Governments have proved very coy either to establish or to acknowledge. Therefore, I ask the Minister to explain how the Secretary of State plans to monitor the operation of these regulations, and the whole new points-based system, to establish quickly who is coming into the country in the various categories and from where.
Let us start with the numbers registered under the EUSS—some 4 million people, generously offered a home here under the withdrawal Act. Where in the EU have they come from, in both large and small numbers? Then add those waiting to be processed. “Processed” is probably the wrong word, but there is asylum, family reunion, arrival by boat across the channel, leave to remain, students—most of whom, I acknowledge, will return home—and other categories. What do the totals, both from the EU and elsewhere, look like, and what is the breakdown by occupation? Perhaps we could then see similar figures for those leaving the UK to get a net picture.
How up to date are the figures currently held by the Home Office? Given the huge numbers, it is vital that the Secretary of State has up-to-date figures. There is a parallel with critical movements or sales figures in a company. I remember doing home affairs at No. 10 in the 1990s, when the numbers were relatively small, and there were a lot of lags in the figures.
We are putting faith in the Government, which I support, and they have refused, to my concern, to introduce a cap or any other realistic measures of the kind proposed by the noble Lord, Lord Green of Deddington. The flow must be tightly monitored so that changes can be introduced when the need arises. I would like evidence that the data needed is being collected, perhaps by a powerful data and economic division reporting weekly to the Secretary of State, and not by the MAC, whose main interest is the supply of labour and talent to demanding employers.
I suspect, as has been said, that Covid will slow the numbers down as there are now so few jobs on offer, even for young UK citizens. But we need to spot when that changes, as the noble Lord, Lord Green, suggests, and act fast if it becomes a problem, hence my emphasis on reliable, up-to-date numbers. I would like the data to be published, but that might take time given cultural issues in a department such as the Home Office.
The use of data by Ministers to inform immigration policy is the most important thing of all. Better statistics would also help other departments to plan the infrastructure, health, education and housing needed. Lack of planning for such services, the resulting bottlenecks and fear for their jobs are reasons many normal people dislike immigration. My noble friend Lord Horam cited a graphic example from Barking and Dagenham, and we must make sure that is not repeated.
My Lords, I understand that the noble Lord, Lord Bhatia, and the noble Baroness, Lady Uddin, have withdrawn, so I call the noble Baroness, Lady Hamwee.
My Lords, the Minister in the Commons said that he
“would not expect employers on 1 July suddenly to check that every member of their staff has EUSS status.” —[
I know someone from the EU who, several years ago, became a British national. A few days ago, she was asked by a confused and anxious HR manager to prove her status. She was, and is, understandably distressed. Her sister has been in the UK for 15 years but does not want to take British nationality. I hoped that she had applied to the settled status scheme; she had, but the Home Office keeps asking her for her reference, having repeatedly failed to give her one. Is this the legacy?
This SI renders the statute book coherent, we are told. It is coherent in a narrow, technical sense, but is it accessible? I understand free movement is about to end; I understand the Government will emphasise that the SI merely implements the recent Act; I understand this SI will become law. But we have an important task today. This is not to ignore that the inability to amend an SI means we are almost always reduced to an empty gesture, that the instrument’s sheer size presents parliamentarians with an exercise I, for one, feel incapable of fulfilling, or that it raises some considerable concerns. It is incumbent on the Government to do all they can and support others to do all they can, to ensure that people affected are clearly informed as to their position.
I do not deny that to have processed over 4 million applications is really going some. But 42% of the grants, so far, are of pre-settled status, with the difficulties and uncertainties that go with that. By definition, we do not know how many people have not applied. We can be pretty sure that the great majority of them are individuals least able to look out for themselves. Many are likely to have the most difficulty in satisfying the Home Office of their entitlement, and many are likely to be the most in need of support, by way of benefits and housing.
The Government accept there is a big communication job to be done: before the end of the transition period; in the first six months of 2021; and after
The organisations to which potential applicants are directed—and this is no criticism of them—may well have difficulty advising on which rights an individual has in his particular circumstances. There is no duty on them to direct him to where advice may be had. And there is no duty on a public body approached by an EEA national without settled status to direct him to the scheme so that he can be put in a position where that public body can respond; for instance, to deal with a benefit claim. It is no answer that this is complicated. That is precisely why it is incumbent on the Home Office to ensure accurate advice is available.
There is further scope for confusion from an apparent inconsistency between these regulations and the health regulations. I am certainly not arguing for reducing access to the NHS, but to give access to—I think—all NHS treatment but not to housing support is bewildering and illogical. We know the impact of poor housing, and especially homelessness, on health.
I have a specific request of the Home Office: a chart, made available to anyone who needs to understand who is entitled to what, setting out what the rights and protections are for those granted status, applied for at different times, and for those with and without treaty rights—every permutation. If it has already been produced, can it be made widely available?
I understand that among those one would expect to be able to advise, there is uncertainty and unease as to just what the regulations will mean in practice. I have sympathy with the Minister in the Commons, who offered to write with answers to various scenarios that were posed during the debate on Tuesday. That illustrates the complexity, and noble Lords will appreciate that any letter will arrive after the SI is in law.
Noble Lords have indicated very different views today. As the noble Baroness, Lady Ritchie, said, and, as my noble friend made clear, we are enthusiasts for free movement. My noble friend raised the compatibility, or otherwise, of the SI with Article 18.3. The Explanatory Memorandum published with the SI is helpful, but it can go only so far and is itself puzzling in part, to me at least. We are told that certain existing regulations are revoked
“because they omit provisions made as a contingency in the event of a no deal exit, which are no longer required”.
Is this foresight or wishful thinking? There are difficulties and concerns with the substance and with the form, but the Home Office is in a position to help with the translation.
The Explanatory Memorandum for these regulations says that their purpose is to amend or revoke a range of some 80 or so existing pieces of domestic primary and secondary legislation, using powers primarily under Section 5 of the Immigration and Social Security Co-ordination (EU Withdrawal) Act 2020, which ends free movement at the end of this month. The Section 5 powers can be used to modify, by regulations, Acts of Parliament—Henry VIII powers—statutory instruments and retained EU law. Nobody could accuse the Government of being shy about using this power, which diminishes the role that Parliament can play in amending, challenging and questioning the detailed changes to the laws of this land which the Government are making in some 55 pages of amendments and schedules in these regulations.
There does not appear to be anything in these regulations that would be different depending on whether there was a deal or no deal, so all of this will have been known to the Government months ago. Why then are these regulations, all 55 pages of amendments and schedules, including involving the use of Henry VIII powers taking away rights and protections, being brought forward for approval by the Government so late in the day? I ask them in their response to give a clear assurance, on the record, that the legislative changes in these rushed regulations will work as intended and are in scope of the Section 5 power, and that further amendments, which could and should have been in these regulations, will not be needed. I will wait to see whether they give that clear assurance on the record and, if they do, whether it is caveat free.
I will raise a few specific points. Will the Government say whether all the detailed legislative changes in these regulations arise from the ending of free movement? I ask that because there is a change to the Immigration Act 1971 which widens the power to exclude people arriving from the common travel area—Ireland, the Channel Islands and the Isle of Man—so that exclusions on “conducive to the public good” grounds need no longer solely be on a national security ground but on a much wider basis, and also that notice of exclusion need no longer be in writing. This does not appear to be a necessary consequence of the withdrawal agreement, so why is a Henry VIII power being used here to make a non-Brexit related change, and why is the change being made?
“the relevant status as an Irish citizen”.
That language suggests that the CTA covers only the UK and the Republic of Ireland, as it omits the Isle of Man and the Channel Islands. Will the Government comment on the significance of the wording to which I have referred?
“no fee payable for an appeal against a decision made under section 5(1) of the 1971 Act (a decision to make a deportation order).”
This would appear to have the possible effect of making it more costly and difficult to appeal a deportation order. Once again, this would appear to be a change being made, this time to an SI, which is unrelated to our leaving the EU and the ending of free movement. Will the Government confirm whether this is the case, and what the real purpose is behind the amendment to this particular SI? Will they also say how many, and which, of the amendments and schedules, in whole or in part, in these regulations are not directly related to our leaving the EU and the end of free movement?
The amendment to the Aliens’ Employment Act 1955 leaves EU citizens and family members with leave to enter or remain on a basis outside the EU settlement scheme—for example, as family members or as skilled workers—with restricted access to Civil Service jobs, as has already been mentioned. This issue was raised in the Commons, when the government answer was that it was right that someone who works in the Civil Service has the appropriate immigration permission for the UK. That does not answer the question, though, of why the Government are placing this restricted access on people who are lawfully resident. I would be grateful for a response from the Government to that question.
The regulations relating to changes to marriage and regarding sham marriage come into force on
Finally, what views did the devolved Administrations express on these regulations? I await the Government’s response to the questions raised in this debate.
I thank all noble Lords for their questions. I am sure that the noble Lord, Lord Rosser, will forgive me—he asked so many questions that I am not sure I can get through all of them this afternoon.
The noble Baroness, Lady Ludford, talked about the complexity of the SI—a point reiterated by the noble Baroness, Lady Hamwee. The changes are required to fully implement the end of free movement by removing references to retained EU law and preferential arrangements for EEA citizens and their family members. Domestic legislation includes these references as a result of decades of membership of the EU. So the SI contains these consequential provisions; it is not a self-contained new policy, and it needs to operate on the statute book as it is now. As a result, yes, the SI is lengthy and includes amendments to a wide range of primary and secondary legislation. However, the overarching effect is simple: the SI aligns EEA citizens and their family members, except Irish citizens and those protected under the withdrawal agreement, with non-EEA citizens. This will pave the way for the points-based immigration system that will treat people on the basis of their skills and their contribution, not their nationality.
The noble Baroness talked also about the examples raised in the House of Commons. I actually did look at the Hansard of the questions raised there. I would not have wanted to reply to those questions because obviously, every single case is different and there may be elements in people’s circumstances that do not elicit a one-size-fits-all response. That also goes to the point made by the noble Baroness, Lady Hamwee—if there will be a chart setting out the rights in all sorts of eventualities. I would have thought that that would be the wrong thing to do because, as I say, everyone’s case is slightly different. We have the Settlement Resolution Centre and GOV.UK, which assist people, and we have also launched a further awareness campaign so that people know their rights.
The noble Baroness also brought up the issue of over 4 million people now applying. The EU settlement scheme is clearly a system that works, given the number of people who have already applied. Yes, some have pre-settled status—that is absolutely to be expected—and there are some with full settled status as well. She asked whether the SI is compatible with Article 18(3), and I can confirm that it is. She asked about the EEA, Turkish citizens and the Civil Service, as did the noble Lord, Lord Rosser. As he said, the SI makes changes to the Aliens’ Employment Act 1955, which will lead to changes in the Civil Service nationality rules concerning who is eligible to work in the Civil Service.
The effect is that newly arriving EEA citizens from
The noble Baroness, Lady Ritchie of Downpatrick, questioned not only the affirmative SI process but the illustrative draft SI process. It was requested and made available ahead of Committee stage of the immigration Bill to facilitate scrutiny of the legislation, so if there is any doubt about parliamentary scrutiny, that was an opportunity for Parliament—both Houses—to scrutinise this SI.
The noble Lord, Lord Rosser, asked whether some of the provisions are unrelated to the end of free movement, and about the compatibility with Section 5. The power to make regulation is provided by Section 5 of the immigration Act, as he said, and that provision is to make changes appropriate as a
“consequence of, or in connection with” the ending of free movement and provisions in the Act relating to the rights of Irish citizens, so all the provisions in the SI are made accordingly.
The noble Lord, Lord Green of Deddington, and my noble friend Lady Neville-Rolfe asked about the cap. It is a very pertinent point. We have ended free movement and introduced the new points-based immigration system. It is absolutely right and fair that in the coming months and years, we look at how that all pans out. My noble friend made a point about the data, which is so important here. It will be kept under review. The noble Baroness, Lady Ritchie of Downpatrick, asked for a debate on the points-based system—obviously, over to noble Lords on that. These things are allowed for in your Lordships’ House, and I look forward to having a debate, perhaps in the first quarter, on how that new system is working. The resident labour market and the key sectors will be kept under very close scrutiny, and we will of course retain the ability to make any changes necessary.
The noble Baroness, Lady Ritchie of Downpatrick, also asked about the impact assessment on health and social care. Noble Lords will recall that back in the debates on the immigration Bill, the noble Lord, Lord Rosser, asked if we could publish an independent review on the impact on the sector of ending free movement, and I undertook to do that.
My noble friend Lady Neville-Rolfe asked about monitoring. She asked me not to talk about the MAC all the time, but I think it will monitor the impact of the new system. She asked for a breakdown by country and sector of who was applying to the EU settlement scheme. I do not have that at the moment, but I can look into it for her and see if we have any information to date.
I hope I have answered all noble Lords’ questions. I will have to write to the noble Lord, Lord Rosser, on some of his points because I could not write them down quickly enough. On that note, I beg to move.