Immigration (Restrictions on Employment and Residential Accommodation) (Prescribed Requirements and Codes of Practice) and Licensing Act 2003 (Personal and Premises Licences) (Forms), etc., Regulations 2022 - Motion to Regret

– in the House of Lords at 5:27 pm on 7th June 2022.

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The Earl of Clancarty:

Moved by The Earl of Clancarty

That this House regrets that the Immigration (Restrictions on Employment and Residential Accommodation) (Prescribed Requirements and Codes of Practice) and Licensing Act 2003 (Personal and Premises Licences) (Forms), etc., Regulations 2022 do not provide an option of a physical proof of status; do not heed the recommendations of the report from the 2018 beta assessment of the Home Office’s ‘prove your right to work’ scheme; and have been introduced without being subject to an impact assessment (SI 2022/242).

Photo of The Earl of Clancarty The Earl of Clancarty Crossbench

My Lords, depending on the Minister’s response, I intend to divide the House. Concerns about the removal of physical proof of immigration status have been discussed previously in this House, and for good reason. I am indebted to the noble Lord, Lord Oates, for the considerable work he has done on this. I am also grateful to the3million, which has provided a comprehensive briefing for this debate jointly with Hongkongers in Britain and the Joint Council for the Welfare of Immigrants. I am grateful too to the Anti Trafficking and Labour Exploitation Unit, City Hearts and the Snowdrop Project for their joint briefing.

The significance of this SI, and it is Part 3 with which we are concerned, lies in the fact that the digital-only policy for the immigration status of migrants becomes, in effect, universal. Part 3 of this SI does this by extending digital-only proof of the right to work and rent to almost all migrants, a further 2.5 million non-EU citizens who will be stripped of their ability to use physical biometric cards to prove such rights. This measure will therefore include Ukrainian citizens who have undergone huge difficulties in reaching this country—those lucky enough to have done so—only to face the numerous problems of a digital-only system in proving their status.

Those problems are legion. They have previously been outlined in detail in this House—the key thing here being that the Government should be well aware of them by now, long before any decision to introduce legislation that takes us considerably further down this road. Indeed, this should not be secondary legislation at all because of the fundamental changes concerning proof of status that it contains. There are the concerns even for those who are digitally literate about the use of the “view and prove” portal, including the frequent unhelpful messages such as “You’re already logged in” and “Service currently unavailable”—there are others—and the fact that attempts to generate a share code result in a system error.

Another problem is the ability of the system to cope properly with multiple applications from an individual, such as a reapplication following an incorrect refusal. That is just one example of many such multiple application errors. In March this year, the3million submitted a report to the independent monitoring authority devoted entirely to the problem of maintaining a digital immigration account. Have the Government seen this document? The new “right to work” and “right to rent” portals are creating similar problems.

These are then expanding concerns, without even touching on the concerns of those who are digitally excluded. An Ofcom review from this year highlighted the fact that older people, the financially vulnerable and those with disabilities are more likely to be affected in this way. Yet the Government have gone ahead with this legislation without any extensive trialling or impact assessment. The one government trial, which was conducted in 2018, concluded:

“There is a clearly identified use need for the physical card at present, and without strong evidence that this need can be mitigated for vulnerable, low-digital skill users, it should be retained.”

One government trial, and that was its conclusion.

Also, clearly there has been no consultation with the anti-trafficking sector, whose briefing for this debate highlights its concern about the potential impact on a large number of vulnerable individuals who are survivors of trafficking and modern slavery and are unable to access the digital-only system on their own. A reliance on support workers to do so removes dignity and independence from survivors; this is a really important point. The sector recommends that the measure is removed and alternatives found. Will the Government consult the sector?

Bearing all this in mind, why did the Government even think of introducing this legislation? The reason given in paragraph 7.8 of the Explanatory Memorandum is that, following our leaving the EU, a small group of non-EU family members stripped of their previously lawful status but most likely eligible for settled status will have unexpired biometric residence cards. Because of this—and because biometric residence permits and frontier worker permits look like BRCs—the Government are getting rid of all of them.

The Explanatory Memorandum claims that there will be a nil or insignificant effect in a number of areas, all of which can be refuted. For instance, there will be a data protection impact as the “view and prove” procedures store transactions against individuals of access to services without there being transparency about this data. There will be an effect on business. A poll commissioned by the3million in 2020 found that employers who participated in the “right to work” trial showed a stronger preference for physical documents than those who had not experienced digital checks.

However, the Explanatory Memorandum is completely silent about the effect on the status holders themselves, which is surely the crucial aspect of this. In 2020, a nationwide survey on the experiences of the EU settlement scheme by Northumbria University found that almost 90% of respondents were unhappy about not having a physical document. These concerns are UK-wide. The Governments of Scotland, Wales and Northern Ireland all wrote to the UK Government twice last year asking for physical proof of status for EU citizens.

The Government’s policy also stands in stark contrast to the rest of Europe. British citizens in the EU protected by the withdrawal agreement have the right to a physical residence document, identical for all member states. Therefore, we are not providing reciprocal proof. Moreover, by virtue of a temporary protection directive, Ukrainian citizens have the right to a physical residence permit.

I am not against a digital system—we live in a digital world—but a digital-only system for immigration status ignores real life, real experience and real people. Like many others, my Covid vaccinations are all on the NHS app. I was hoping to go abroad this year; I have not yet. Every time my Covid details needed updating, I printed out that page with a QR code—I am sure I am not the only one who does this—which is the crucial part of that data, and put it with my passport in case I could not use my phone at the airport. The3million has made the reasonable suggestion that such a QR code solution could be used for immigration status for EU citizens, and it is hugely disappointing that the Home Office has rejected this proposal without any further engagement with the3million so far, despite the fact that the objections raised have been answered one by one.

On the subject of engagement, in response to a promise the Minister made during the passage of the now Nationality and Borders Act, I gently remind her that I have not yet had a reply to the email I sent her two months ago requesting a meeting on these matters. Can something be sorted out?

Finally, I want to make a point that I believe no one has made yet. By removing the physical document, you are not just taking away something without which there are significant practical problems anyway; that in itself is insensitive. You are also depriving citizens of that piece of card or paper they can hold up and show to anyone that this allows them—a Ukrainian citizen, for instance—the right to be resident in this country, to work here and to find a place to live here. It is the same sense that our own passport gives. That piece of card or paper I am holding in my hand is a fundamental thing—a part of who I am at this moment in time. That is hugely important in itself. To deny that is surely a cruelty, and for that reason alone the Government should revoke this legislation.

Photo of Lord Oates Lord Oates Liberal Democrat

My Lords, I welcome the noble Earl, Lord Clancarty, moving this regret Motion. I thank him for his kind comments and I reciprocate.

Although I welcome us discussing the regret Motion, I regret that we are returning to the issue of digital-only proof of status—not because the Home Office is showing any willingness to listen to those affected, to understand the problems it is causing them or to empathise with the deep anxieties they are suffering as a result, but because it has determined to ignore all the warnings it is given and all the actual cases of hardship that have been reported to it. Far from sensibly conceding that physical proof should accompany digital proof of status, it has decided to extend the imposition of digital-only from holders of EU settled and pre-settled status to almost everybody else. Huge numbers of people will recently have discovered that their biometric residence cards, biometric residence permits and frontier worker permits have been rendered invalid for the purpose of proving status to landlords and employers since 6 April this year, even if the validity of their card had years to run.

These measures do not apply to British and Irish citizens, who will be able to prove their status digitally by having their identity documents validated by an identity validation technology service provider and will retain physical documents as an option when digital proof does not work. Of course, they have the right to vote in general elections—I wonder whether that was a consideration of the Home Office.

In advance of digital-only proof of status being imposed, Members of this House warned repeatedly about the sort of problems it would cause. The Home Office ignored those warnings. Now that these problems are manifesting themselves in hardship cases, the Home Office is ignoring them too. As the noble Earl, Lord Clancarty, pointed out, the Explanatory Memorandum states:

“There is … no significant … impact on charities or voluntary bodies” and

“no significant … impact on the public sector.”

It says absolutely nothing about the individuals who have to operate that system, which tells you everything you need to know about the Home Office’s approach. The arguments for providing physical proof alongside digital proof have been aired extensively in this House on previous occasions, including during the passage of the immigration and social security co-ordination Act, when your Lordships gave overwhelming support to an amendment to that effect.

Credible government arguments were entirely elusive and, as the noble Earl has already mentioned, the Government’s pilot scheme expressly warned against a digital-only system. So not only do the Government lack credible arguments but there is the question of equity, which was also raised by the noble Earl. By denying physical proof of status to EU citizens and others, we are denying something which is available to all our citizens in the European Union by right.

I shall not rehearse all the arguments we have been through, but I want to highlight to the House some of the impacts that are being felt by those who have digital-only status imposed on them. In doing so, I acknowledge the excellent work of the3million, the Anti Trafficking and Labour Exploitation Unit, City Hearts and the Snowdrop Project in keeping us informed on these matters. They have reported a series of problems and distress, with the “view and prove” system throwing up multiple errors, such as, “You are already logged in”, “The details don’t match our records”, “Service currently unavailable” and, most chillingly, “We can’t find your status.” There are problems when updating status because, for example, the person has a new passport. There are problems accessing mortgages and loans and problems when trying to return home to the United Kingdom. One of the3million’s staff recounted this experience recently. She said, “I was denied boarding in Palma de Mallorca because I have a Romanian passport and I’m going back to the UK, where I have lived for the last 12 years. They asked for additional photo ID, which they said would prove I have an immigration status in the UK.” It was only because she was a staff member of the3million that she knew her rights and was able to board. Pity the person who did not know all the details.

There are problems accessing employment. The Snowdrop Project reports a client who got a job as a care assistant. Having passed DBS checks and references, her employer asked for a share code. She went to the Home Office site, but every time she tried it, it said it could not find her details. Eventually she managed to speak to someone at the Home Office who confirmed that the issue was on its side. The issue was still unresolved weeks afterwards. This has meant a month of no pay while waiting for the job to start and not knowing when the issue will be resolved, and one less carer in an already overstretched care system. Do the Government have any understanding of how distressing these sorts of incidents are to the people concerned? Will Ministers at least try to walk a little distance in the shoes of others and to understand the impact this policy is having?

There is not time today to list the many case studies and examples provided by the organisations I have mentioned, but the Government can read their briefing materials as well as I can. I hope the Minister will do so and will react with compassion and understanding and do something to deal with the situation. All this is avoidable if the Home Office would move on the issue which is causing such evident problems. As the noble Earl mentioned, the3million has made a proposal which could work along the lines of the Covid passes in our NHS app. That app gives us confidence and means that when there is a problem with the digital service we have a back-up. Sadly, when this idea was put in a comprehensive manner to the Home Office it put its hands over its ears once again and rejected it without properly discussing it with those who proposed it.

At the time of the Windrush scandal the Home Office commissioned the Windrush Lessons Learned Review. It had this to say at page 137:

“Warning flags about the potential consequences of the policy were raised at various stages, in various ways and by various interested parties. Yet ministers and officials were impervious to these warnings because of their resolute conviction that the implementation of the relevant policies was effective, should be vigorously pursued and would achieve the policy intent. Efforts to address concerns were superficial at best and served to deal with the symptoms rather than the root causes of the problem.”

Those words could have been written precisely for this policy. It seems that very little has been learned. I want to believe that the Minister is a person who cares about the real and distressing impacts on individuals so I hope that, rather than just repeating the Home Office line today, she will take on board the lessons of Windrush and help the Home Office find a way to a policy more considerate of the real experiences of people.

When I think about this policy, I think of my dad and late mum and how they would have been affected had they been EU citizens or had other migration status allowing them only digital proof of status. I think of the bemusement they would have felt to be told they could have no physical proof of their right to live in the country. I imagine trying to explain to them the Home Office “view and prove” site and how the only acceptable proof would be a code they would have to generate by going online, which would be valid for just 90 days. I imagine the fear and anxiety they would feel if they had to travel abroad on that basis. I imagine the distress they would feel at having no tangible proof of the right to live in this country. Then I think of all those people who are being forced to suffer exactly such anxiety and distress at the moment and it makes my blood boil.

It is time—well past time—that our country’s Government stopped acting with such callous disregard for the welfare of those who have chosen to make their home among us. It is time for them to act and reverse this policy.

Photo of Baroness Jones of Moulsecoomb Baroness Jones of Moulsecoomb Green 5:45 pm, 7th June 2022

As noble Lords have said, we have discussed this sort of thing several times before; I will be quite brief. When faced with this sort of legislation, of which I do not have first-hand experience, I tend to read the briefings we get from NGOs very well, get ideas from other places and even check Green Party policy. This time, I read the briefings and I just thought, “Why? Why are you doing this to some of the most vulnerable people, who are migrants displaced from their countries by war, famine, environmental conditions and all sorts of reasons?” They come to this country in search of some sort of safety and well-being. Why can the Government not design an accessible, inclusive system?

It is not as though there are no ideas. We hear quite a lot from individuals in the Cabinet saying, “This is a good idea because nobody else has any ideas.” Actually, we do have ideas in this House and quite often the Government completely ignore us. I will mention a number of organisations whose briefings were very good: the Anti Trafficking and Labour Exploitation Unit, City Hearts, the Snowdrop Project, Hongkongers in Britain, the Joint Council for the Welfare of Immigrants and the3million; they give a voice to EU citizens in the UK. I come back to the question of why? Why have a system that is so difficult and will create even more pressure and distress for people who may already be distressed? I just do not understand.

The Government have talked about e-visas as though they were something wonderful—modern, streamlined and so on. They are clearly not. They do not work particularly well, they are difficult to access and they create more pressure. If the Government tried to do this to British citizens, or, let us say, Tory MPs—actually, not Tory MPs as they would probably get their staff to do it, but British citizens anyway—there would be a public outcry. People would not like this. We all like to have a document. I always carry my Covid vaccination certificate in my purse. It is a tiny little card but I carry it as a useful reminder for myself and because I could perhaps use it another time. Everybody likes some sort of paper copy.

Not only is this not appropriate for secondary legislation—particularly in view of the resistance there has been in your Lordships’ House already—but it is not a good piece of legislation. Again and again, we see poorly thought-through, poorly drafted legislation, and this is another example. Please—we need an inclusive, accessible system. The noble Earl mentioned using a QR code, for example; there are better ways of doing this. I find this hard; I have a lot of friends on opposite Benches and I believe them to be good people but, again and again, we see legislation like this going through and you cannot help feeling that it is a spiteful and cruel way to treat people.

Photo of Baroness Neville-Rolfe Baroness Neville-Rolfe Chair, Built Environment Committee, Chair, Built Environment Committee

I thank the noble Earl, Lord Clancarty, for initiating this debate on a system that has, of course, already come into operation. I look forward to hearing my noble friend the Minister’s explanation of these measures and their desirability. However, I have had a very helpful and reassuring briefing from her officials, for which I thank her.

I am sorry that there is no impact assessment. Large numbers of organisations and individuals are potentially involved—businesses, landlords and others. The Explanatory Memorandum suggests that there may even be savings in costs for them. Frankly, it would be worth detailing this for review, if there is a good story to tell. Perhaps I could make a wider point. We now have human rights and climate change statements on Bills and equality assessments on everything, but we have forgotten the importance of cost-benefit and impact assessment, which can be vital to productivity and growth. Perhaps the department could consider its approach for the future and talk to Mr Rees-Mogg as part of his quest for efficiency and opportunity and fight against bureaucracy, which often needlessly costs money.

In the absence of such an analysis, could my noble friend outline the response of businesses to these various measures, from employers generally and from landlords? Will a largely digital system be manageable by small businesses, especially if there are IT problems of the kind that some previous speakers have described? I believe that there is a new telephone helpline, and it would be good to know how it is coping and to hear about reactions to the move to digital. Finally, I understand that new codes of practice have been devised for employers and others, which I have not been able to find, and I would very much appreciate a summary of what they are trying to do, and a link.

I look forward to the Minister’s comments, and very much hope to be able to support her in the Lobbies.

Photo of Lord Russell of Liverpool Lord Russell of Liverpool Deputy Chairman of Committees

I thank the noble Baroness for introducing an element of farce into today’s discussions. The thought of the “Minister for the 18th Century” trying to navigate his way through a digital platform—or, as he is rather elegantly known, the Minister for Brexit Opportunities, for which, unfortunately, the acronym is the Minister for BO—is beyond belief, really. I shall try to put it out of my mind while I get my thoughts together.

When I looked at the briefing for this statutory instrument—I did not actually try to read it, because by the time you have got halfway through the title you need a drink—I wondered whether this was an example of the law of unintended consequences or an example of the law of intended consequences. Having read the briefings, which are very good, and having listened to my noble friend Lord Clancarty and the noble Lord, Lord Oates, talk in great detail about it, it is quite clear—and it must be clear to the Home Office—that there are a great deal of things in the system, as it is currently trying to operate, which are not working properly. There is no acknowledgement whatever in any of this, or in any impact assessment, that that there is room for considerable improvement.

What we are faced with is an SI that does not acknowledge what appears to be the case, which is that the system is currently not working properly. It is inconveniencing a great many people, many of whom are not necessarily the best equipped to try to navigate their way through these complexities. Adding insult to injury, it is now going to be made mandatory for a very large group of people, without any proper impact assessment.

My conclusion is that we are witnessing the law of intended consequences, because the Government and the Home Office are well aware that currently the system is not working, and that they are proposing to enact something which they know will not work. One definition of insanity is trying to make the same mistake again and again. This Government appear to be particularly gifted in that area. I ask the Minister and her officials to reflect on what they are doing. If any Ministers, Members of Parliament, Members of this House, advisers on this statutory instrument, or people whom they know, had to go through the indignities, inequalities and ineffectiveness of the current system, they would not put up with it, and nor should we.

Photo of Baroness Ludford Baroness Ludford Liberal Democrat Lords Spokesperson (Exiting the European Union)

My Lords, I too thank the noble Earl, Lord Clancarty, for ensuring that we have this debate, and I join with him in applauding the previous work that my noble friend Lord Oates has done on this issue.

These regulations make online checks mandatory for all people with immigration status in the UK, as has been the case for almost a year for EU, EEA and Swiss citizens. However, there has been little publicity or awareness raising; perhaps this debate helps to fill that gap. There has also been no learning exercise from the EU settlement scheme. If there had been, there may well have been a revolt, because millions are being stripped of their right to use their biometric cards to prove their right to work and rent.

Many EU, EEA and Swiss citizens are already struggling with this digital-only status, and the Home Office is very aware of this. It is inaccessible for those with low digital literacy or certain disabilities. It is reliant on Home Office systems, so the applicant depends on the Home Office service and databases being up and running continuously. The group the3million, which has already been cited in this debate, has extensively documented the fundamental design problems, accessibility issues and system glitches of the digital-only proof of status. There are people for whom an online status can never work, such as vulnerable adults who do not have a smartphone or computer or any internet access. They might have no access to the email or phone number that was used to apply if they were helped by somebody, and therefore they cannot receive a security code themselves to log in. Those in these groups are at a heightened risk of being marginalised by a digital-only status.

Others have mentioned that the online portal is prone to error, with people unable to access their status and facing error messages or incorrect information. Updating a status with a renewed passport has led to some not being able to access or prove their status with either their old or their new passport details. A person with a refused application for EU settlement status and a new application can only see the refused one. Many with pre-settled status and a pending application for settled status can only see a certificate of application for the pending application. They can no longer prove the vital information that they already have pre-settled status.

People cannot check what contact details the Home Office currently holds on them. Although they might get a confirmation email, that only states that they have updated their contact address. It does not state the actual address, so you do not know whether it is registered in the system. Many people are known by a name other than that held in the identity document—most obviously, those with a married name—who want to add that name to their EU settlement status. Although the Home Office says that this is now possible, people are not at all happy with the process, which involves sending identity documents through the post.

We have heard that the Government have a call centre, the Settlement Resolution Centre, to assist those having difficulty with the new, improved system. However, in the year to October 2021, only 44% of the calls to that line were successfully connected, which means that 56%—nearly 820,000 calls—were abandoned, many automatically disconnected. The Home Office has stressed that, since its inception, the Settlement Resolution Centre has handled over 2 million calls and emails. This rather goes to show how many people need support, so will any additional support options be made available beyond the Settlement Resolution Centre if this SI comes into force?

We have heard from other speakers about the solutions that would address both the Home Office’s concerns about security and cost, and citizens’ concerns about their data rights, privacy, accessibility and desire to have a permanent proof of status under their control. In particular, they have proposed a secure QR code. As my noble friend Lord Oates mentioned, this has worked very successfully for proof of Covid vaccination. It could be on a mobile device, on an app, on a small card, on a piece of paper or a sticker in a passport, but it has been rejected by the Home Office without any genuine engagement. It would be very easy for a prospective employer or landlord wanting to check someone’s rights: they would be able to look at the document and verify its authenticity by scanning the QR code. It would also help those travellers who, as others have mentioned, have had problems getting flights home to the UK. They have not been accepted on a flight with just their EU passport and have been asked for additional proof, but have not necessarily had it.

The lack of a full impact assessment is a severe gap, and to say that there is no significant impact on charities, voluntary bodies or the public sector, or any adverse effect on business, beggars belief. The lack of a data protection impact assessment is serious because the “right to work” and “right to rent” mechanisms are able to store transactions against individuals on which jobs, rentals and other services they have attempted to access. There is no transparency around this data: we do not know what it is used for, who it is shared with or for how long it is retained. To extend this to all people with migration status without any assessment of impact, including data protection impact, is a serious omission. As others have said, this SI raises very serious concerns and the Government should hold off any further implementation of digital-only until they have had very serious engagement on all the problems it raises.

Photo of Lord Berkeley of Knighton Lord Berkeley of Knighton Crossbench 6:00 pm, 7th June 2022

My Lords, given what we have heard from my noble friend—I certainly support his Motion—it occurs to me that where these unfortunate people have language problems, it follows that the police, immigration officers and Border Force will have the same problems. Surely, it would solve a lot of their problems if a card could be produced to show that somebody had the right to stay and to prove their identity. I think it works both ways.

Photo of The Duke of Somerset The Duke of Somerset Crossbench

My Lords, I should like to add my voice to support this Motion to regret. The strong impression given by these regulations is that they have been developed entirely for the benefit of government and others, such as landlords and businesses, who have to check other people’s status. The needs of those with biometric residence cards or permits are not being treated with due consideration.

Apparently, 2.5 million non-EU citizens are being stripped of their right to use these cards to prove their right to work and rent, and that is a huge number. This contrasts starkly with the identity document validation technology, which is of course, by right, available to British and Irish citizens to prove the status digitally. Generally, they will do this by an identity app on their phone, which then allows them to use the physical passport in the many cases where digital proof does not work, or where a checker does not wish to use the IDVT process.

Why this disparity? What about the lack of privacy implicit in the digital-only system? Why are these people being treated as second-class? For that is what they perceive and many of us perceive them to be.

We have heard, and we all know, that technology fails. We are all familiar with the error messages that are normally infuriating, but when a process is vital—say, to secure a job or a house to live in—the risk of losing that opportunity is very real. That is why so many people prefer physical documents, including the devolved Governments, businesses and the status seekers themselves.

We have heard a little about the Ukrainians. They are also in this mess, arriving from a country at war. This Government are actively arming Ukraine brilliantly but have been pretty slow to accept its fleeing citizens. They are not English-speaking and, incidentally, many have had their dogs removed by the Home Office when they have full documentation for them, just to add to the difficulties they are suffering.

Can you imagine the further distress suffered when messages such as “service is currently unavailable” pop up on the portal website? I trust the Minister will tell the House why because the inadequate impact assessment really considers only the effects on those checking others. It ignores the needs of those being checked. I believe it certainly will have an impact on businesses, charities and local authorities, contrary to the statement in the Explanatory Memorandum.

There is nothing inherently wrong with digital but it needs backing up with physical documentation. I know the country voted for Brexit and the hard border controls that go with it, but the people we are considering this afternoon have a right to live and work here so can we not welcome them decently, humanely and with proper regard for their welfare, mental as well as physical?

Photo of Lord Cromwell Lord Cromwell Crossbench

My Lords, I rise with a depressing sense of déjà vu. We had exactly the same discussions about EU citizens during the Brexit debates and it forces me to come to exactly the same conclusion, which I do not think anyone has mentioned so far. I suspect this resistance to physical proof derives from an almost fetishistic resistance to the idea of anything that feels like an ID card, despite the fact that every Member of this House in the Chamber right now is wearing one. I ask the Minister: is that what the impasse is? Does it feel like ID cards coming in by the back door and there is resistance to that? I would be very grateful for her clarity.

Photo of Baroness Hamwee Baroness Hamwee Liberal Democrat Lords Spokesperson (Immigration), Chair, Justice and Home Affairs Committee, Chair, Justice and Home Affairs Committee

My Lords, I have two sentences. My noble friends referred to examples of problems encountered by the people affected. I am sure other noble Lords will have thought, as I did, that if there are problems at the border and if airlines cannot cope—and it is their bread and butter to deal with status—is it any surprise that employers, landlords and so on have difficulties too?

Photo of Lord Paddick Lord Paddick Liberal Democrat Lords Spokesperson (Home Affairs)

My Lords, the noble Earl, Lord Clancarty, comprehensively set out the concerns with this statutory instrument, powerfully reinforced by my noble friends Lord Oates and Lady Ludford in particular. On a positive note, the instrument adds categories of people who can rent housing, but I am afraid that is about it.

There are two revised codes of practice: one on civil penalties and how to avoid them if you allow someone to work who is not entitled to work, for example, and another on how to avoid unlawful discrimination—for example, between British citizens and someone who is not a British citizen but is allowed to work in the UK.

The codes of practice on non-discrimination say that employers should do a right-to-work check on every applicant, British citizen or not, so as to treat everyone the same, but the checks are not the same. British and Irish citizens can produce a passport, current or expired. Would the Minister comment on whether an expired passport issued when the holder was six months old would be acceptable as a physical document for an employer? EU citizens who have applied for settled status can produce a document issued by the Home Office showing that they have applied, in which case they are entitled to work, but the employer must also have a positive verification notice from the Home Office employer checking service.

As other noble Lords have said, for foreign nationals who hold a biometric residence card, biometric residence permit or a frontier worker permit, even these documents can no longer be used as evidence on their own of their right to work without using the Home Office online system in addition. As other noble Lords have said, that will now include Ukrainian refugees. EU citizens who have settled status are even further discriminated against as they have no physical proof that they have a right to work, and the employer has to rely entirely on what is a not entirely reliable Home Office online system.

Despite the codes of practice to help employers avoid discrimination, the codes of practice on how to avoid civil or criminal penalties for employing someone not entitled to work are themselves discriminatory, in that British and Irish workers can be employed on the basis of a physical document, current or expired, but everyone else, even if they have physical proof, has to get it checked by the Home Office online system. How many employers, particularly those employing casual labour or temporary staff, will take the quick and easy route and employ a British or Irish citizen, based potentially on an expired passport, rather than a foreign worker?

As my noble friend Lord Oates said, the Windrush Lessons Learned Review emphasised the need for the Home Office to listen to the users of the system. Those who have to rely on digital-only proof of their rights have consistently said that they want physical proof. The Government have not learned the lessons of Windrush. We support this regret Motion and will support the noble Earl if he decides to divide the House.

Photo of Lord Ponsonby of Shulbrede Lord Ponsonby of Shulbrede Shadow Spokesperson (Justice), Shadow Spokesperson (Home Affairs)

My Lords, this is clearly an ongoing issue which the House of Commons and multiple Select Committees have raised and looked at over a number of years, as we have heard from a number of contributions. For me, it is a familiar problem. I think of the discussions and debates we had about the digitisation of the courts system, which raised many similar issues. I understand that the Government’s long-term interest is to look at a digital system and they want a digital-only system. The problems and concerns this raises are being debated today. We are also debating how the Government are responding, or not, to the concerns raised.

I echo the concern that this change is being made in a negative statutory instrument without an impact assessment—I see the noble Baroness, Lady Neville-Rolfe, nodding her head. Hers was the only speech that supported the Government’s position—or she said that she wanted to support the Government—so I wrote down her questions, as I think they are worth repeating. The first was the point about the impact assessment. Another was about the lack of detail on cost saving, which was a good question. What is the actual foreseen monetary cost saving through this policy? She also raised a question about the lack of consultation with the business sector on the scheme. I would be interested to hear those answers.

I anticipate that the Government will say that the scheme is no longer new or unfamiliar, as landlords and employers have had access to the online system since 2019-20. The questions are now: how is the system working? What about those people it excludes? Is it performing well enough to be rolled out to cover more people? Why can physical proof not work in tandem with the growing online system? Indeed, that seems to be the crux of the questions put to the Minister: why can we not have a physical system working in tandem with the online system?

Reference has been made to the reasons why the Government are introducing this system in the first place, and why they are concerned that some people have a biometric residence card without having the right to be in the UK. This is a reason for this change in the first place. I must say that it is remarkable that people can have valid, in-date biometric residence cards but technically have no right to residence. Are all those people actually eligible to live and work in the UK, but they need to update their status? What is being done urgently by the Home Office to resolve this issue? I ask the Minister: how many people are in this position? How many people have biometric residence cards who will be impacted by this change, just so that a small number of people can be targeted? The briefing we have received, which has been referred to by a number of noble Lords, says that 2.5 million non-EU citizens will lose their right to use their valid biometric card to demonstrate their rights.

The Motion in the noble Earl’s name mentions the 2018 beta assessment report of the Home Office. As far as I am aware, this is the only assessment that has been done, and it was done before the rollout of digital status to EU settled citizens. I will quote three points from that assessment. First, it says:

“In particular there is a need as the service becomes mandatory to ensure that it is usable by all users, including those with a current preference for a physical object.”

The second point made by the assessment is:

“Significant care will be required before any decision to remove the physical ‘Biometric Residence Permit’, due to … strongly held concerns, particularly with users with low digital skills.”

The third point it makes is:

“There is a clearly identified user need for the physical card at present, and without strong evidence that this need can be mitigated for vulnerable, low-digital skill users, it should be retained.”

I believe that the noble Earl, Lord Clancarty, has done the House a service in moving this regret Motion. The Government need to get the message that ploughing ahead with this mandating of digital-only schemes will increase the number of people who are digitally excluded and undermine the public’s confidence in the visa system itself. If the noble Earl decides to press this Motion, we will support him in the Lobby.

Photo of Baroness Williams of Trafford Baroness Williams of Trafford The Minister of State, Home Department 6:15 pm, 7th June 2022

My Lords, I thank all noble Lords who have spoken in this debate, and particularly the noble Earl, Lord Clancarty, for securing it. I smiled earlier when the noble Lord, Lord Russell of Liverpool, talked about “the Minister for the 18th century” because it felt a bit like the House for the 18th century. I am a very much a Minister for the 21st century, and this is the way that the Government are going: digital by default.

On a much more serious note, several noble Lords mentioned several problems, particularly the noble Lord, Lord Oates, and the noble Earl, Lord Clancarty. I apologise if the noble Earl has not received a response. I am very happy to meet with both the noble Lord and the noble Earl—and will make sure that my office sets it up—to go through the various problems and see whether we can resolve at least some of them, in particular specific problems relating to the specific cases they raised today.

The regulations that are the basis of today’s discussions change the way in which a biometric card holder can prove their right to work and rent. Since 6 April this year, everyone with a biometric card—be that a biometric residence permit, a biometric residence card or indeed a frontier worker permit—must now use the online checking services.

This is not due to resistance to ID cards; it is because this type of system is far more secure than the paper system. Two noble Lords talked about the Windrush issue. This is precisely the converse of that; it is about ensuring that everyone who has a status can prove it. I certainly do not think the Ukrainian issue is particularly pertinent to today’s debate, given that Ukrainian people who come here via the Ukrainian scheme have an automatic right to work when they get here.

Online checking services have been available for employment and rental checks since 2019 and 2020, respectively. For the information of the noble Baroness, Lady Jones of Moulsecoomb, e-visas have been rolling out since 2018. Use of these services continues to increase month on month. Even ahead of the latest change, employment profiles have been accessed almost 2 million times by employers and employees. User satisfaction is at 80%, and even higher for landlords and tenants at 84%. Those figures do not give me the impression of a system that is difficult to use.

We have had the debate on physical proof of status a number of times—I have a bit of déjà vu from the Nationality and Borders Act—but it might be helpful at this stage if I set out the process introduced by the regulations. Individuals use their card number and date of birth to access online services, and can then share their status with an employer or landlord. It is a digital use of the card rather than a physical use. Holders do not need to access their online profile in real time such as one might for an NHS QR code. Rather, they generate a share code ahead of use for the employer or landlord to access their profile at the time they undertake the check. The share code lasts for 90 days and can be stored however the holder wishes, including being printed or written.

The changes mean there is a single, clear position for the use of all these cards. This makes it easier for employers and landlords to make their assessment on eligibility. The approach means we can harness the benefits of using online evidence of immigration status. In our experience, the use of digital services has continued to increase significantly; many people are now using online checking services to evidence their rights.

We have received very positive feedback from those using the online checking services. Most users find it simple and easy to use. They can check their status at any time and can contact the Home Office if they experience any issues. The new approach also supports the recruitment process as part of the hybrid model being adopted by many businesses following the pandemic.

As the noble Lord, Lord Ponsonby, did, I will move to the various questions from my noble friend Lady Neville-Rolfe. One of the issues she raised was burdensome change for landlords. As I think I have said, the information is available in real time from Home Office systems. Landlords can then store their PDF output electronically or print it for their records, depending on their preference. On the question of there being any known problems with the system, I can say that there have been no wholesale outages and support services are in place for those experiencing technical problems individually. There is also a hotline for employers and landlords. We have not completed an impact assessment, as economists deemed the change to be cost-neutral or even cost-beneficial.

There are no changes to the equalities duties required of landlords: these were reiterated in the context of the move from physical to digital checks, and we consulted the Equality and Human Rights Commission and the Equality Commission for Northern Ireland on the landlord and employer codes.

My screen has just frozen—and with me talking about digital status. Oh, it is okay, I have it back.

A number of noble Lords asked about vulnerable people. We have developed our digital products and services for use by all, including vulnerable users—it is a very important point—taking into account the beta assessment recommendations from 2018. Users can contact the UKVI resolution centre, which provides telephone and email support to those using the online immigration status services. It can also assist users who are experiencing technical issues. The point about less well-developed English language skills is well made. We are providing interpreter services for callers to the UKVI resolution centre if they have status queries and require that service.

The changes we are making are consistent with the border and immigration system that the Home Office is developing. The system will be digital by default, as I said earlier, with the ambition to phase out physical documents before the end of 2024 as we move towards a system of online evidence of immigration status. To support this change, since 2015 we have been short-dating BRPs to expire at the end of 2024, even for those whose immigration leave expires after that date, but there will be a two-year period of transition within that.

The UK’s new immigration system follows the example set by countries such as Australia, the US, Canada and the EU as we move towards a digital system. The shift towards a digital border and immigration system is not a new approach. Every year, millions of people renew their passport, and about 3 million people apply for a visa, online.

On data protection, online evidence of immigration status is secure and can be accessed anywhere and in real time. It cannot be lost, stolen or tampered with, as I said earlier, unlike a physical document. It puts individuals in control of their data. They have direct access to information held by the Home Office about their status and, in line with the principles of data minimisation, can share only the information required by a checker, rather than all the information held on a physical card. Those conducting status checks receive accurate confirmation of the person’s current status direct from the Home Office. Of course, information on a physical document may be out of date if a person’s status has changed since it was issued, whereas a person’s online profile is always up to date.

There is no change for those with expired passports, which answers the question of the noble Lord, Lord Paddick. Migrants with time-limited leave cannot use an expired passport, and those with indefinite leave can use this system only to rent and not to work. This remains unchanged.

I touched on the 2018 beta recommendations earlier. It was said that the Government had not taken full account of them, but that is not the case. Full consideration has been given in developing our digital products and services.

Obviously, we know that some will find online services more challenging than others, and that is why we have that wide range of support available, including the resolution centre.

I go back to the impact assessment and, now, the equality impact assessment. I assure the House that a full equality impact assessment was completed back in October last year, demonstrating due regard to our obligations under Section 149 of the Equality Act 2010. I can tell the House today that I am placing copies in the Libraries of both Houses of Parliament and it will be published on GOV.UK shortly thereafter.

Undertaking immigration status checks remotely is quick, accurate and efficient—

Photo of Baroness Neville-Rolfe Baroness Neville-Rolfe Chair, Built Environment Committee, Chair, Built Environment Committee 6:30 pm, 7th June 2022

Would my noble friend be able to give us a copy of the economists’ assessment of why no cost-benefit analysis seems to be needed? It is appreciated that an equality assessment is being made available. As I said, the Government are very good about always doing those. My worry is that cost-benefit is no longer considered important and that is a problem when we have an economy that needs to grow.

Photo of Baroness Williams of Trafford Baroness Williams of Trafford The Minister of State, Home Department

I can certainly take my noble friend’s point back for her.

We have made it clear that the Government’s ambition is to phase out physical documents before the end of 2024. In terms of developing our digital products, we are bearing in mind and taking into account vulnerable users. We have taken full account of the recommendations from the beta assessment and designed our digital services and products to be used easily. We also have support services in place for those who need them and the move towards digital is justified and proportionate, as it ensures that individuals without lawful immigration status cannot access employment or accommodation in the private rented sector.

We are focused on delivering a fair and effective immigration system and, as I have said, these measures will allow us to strike the right balance in pursuit of that aim. With that, I ask that the noble Earl withdraws his Motion.

Photo of The Earl of Clancarty The Earl of Clancarty Crossbench

My Lords, I thank the Minister for her reply. I will be very brief. I thank everyone who has taken part in what has been a constructive debate. I thank the Minister for agreeing to set up a meeting; that will be very helpful indeed.

The Minister mentioned the satisfaction ratings of 80% for right to work and 84% for right to rent. It sounds wonderful, but 80% means that 20% of people are struggling with the system. If you think about the millions who will be using the system, that is a huge number of people. Looked at that way, it is not good at all.

The Minister is clearly giving no promise whatever of seeking the provision of a physical document. As I said previously, I am not against digital; nor are most of us in this Chamber. We want to see the provision of a physical document alongside the digital system. That is not promised and for that reason I would like to test the opinion of the House.

Ayes 159, Noes 95.

Division number 1 Immigration (Restrictions on Employment and Residential Accommodation) (Prescribed Requirements and Codes of Practice) and Licensing Act 2003 (Personal and Premises Licences) (Forms), etc., Regulations 2022 - Motion to Regret

Aye: 159 Members of the House of Lords

No: 95 Members of the House of Lords

Ayes: A-Z by last name

Nos: A-Z by last name

The Earl of Clancarty’s Motion agreed.

House adjourned at 6.45 pm.