No. I think to some extent that is because of failings in the Home Office and the Government, but to another it is because the issues that were exposed most clearly by Windrush are very deep-seated in immigration law and the way we conduct almost all our immigration system. I would not necessarily have expected the Government to be able to do that in the time that we have had. The problem we face is that we are moving very quickly towards a situation in which between 3 million and 4 million more people’s immigration status or leave to remain in this country will not be as clear as it once was. That is because European nationals will no longer simply be able to show a passport and have everyone immediately assume that they have the right to work, to rent, to access healthcare and to simply live their lives here.
Over a period of years, several Governments have introduced a compliant or a hostile environment where immigration checks are part of day-to-day life and where private individuals have to carry them out, which we know causes discrimination for non-EU citizens. For example in the right to rent, we know that landlords are less likely to rent to people without British passports. We know that in some situations that can cause ethnicity discrimination. We are now proposing that the status of another 3 million to 4 million people should be potentially uncertain because their passport does not mean what it once did.
As an organisation, we do not have a formal position on the continuation of free movement or on exactly what the best political solution is to these problems. We are concerned with the human rights, the procedural rights and the legal rights of all people in this country, particularly migrants. The situation we are in and the way in which the Government have approached the settlement scheme and resolving some of these issues increases those risks.
Absolutely. I think you have already heard evidence that, at the end of the period allowed for people to make their settlement applications, potentially hundreds of thousands of people will not have been successful in doing so. Those people will be undocumented. They will be in exactly the situation that Windrush people found themselves in. If there is no deal, that could happen much earlier because it becomes very unclear what the difference is between the rights of EU nationals who arrived during the transition period and those of EU nationals who were already here. You might start to see some of those problems occurring much more immediately.
At the moment, non-EU immigration law is extraordinarily complex. Supreme Court judges, Court of Appeal judges, immigration experts and immigration lawyers have all said in public that it is almost impossible for anyone to navigate, let alone for people who are expected to do so without necessarily having perfect English or legal aid. To a great extent, the reason why it is so complex is that immigration rules have been made over many years and over many Governments, and they are frequently made in response to political pressures, without very much consideration of the consequences or of the underlying evidence for making them. They just pile on top of each other and you end up with a system that does not work for anyone.
You have that in the context of a Home Office that has been underfunded for some time and which has seen real-terms cuts to its funding over the past few years. It is now about to be asked to move from a system of free movement, which was, as the Minister said, a light-touch and simple system, to one that is potentially very complex. You, as parliamentarians, are being asked not just to approve that move but to approve the Home Office taking complete control over how the new system is going to work at a time when successive Home Secretaries and Prime Ministers have failed to construct a system that works when they have had the power to do so. At this time, Parliament should not be abdicating its responsibility to scrutinise and to decide what the immigration system should look like. At the moment, from everything that we have seen, the Home Office is not capable of administering the existing system.
Q In the light of what you have said about the complexity and difficulty of the system, would it have been helpful if the Government had followed the Law Commission’s idea of simplifying immigration and then added the 3 million or 4 million, so that it would have been easier to operate?
We have a number of recommendations that we would make if the settlement scheme remained an application process, but we think that, by far the simplest, most cost-effective and safest thing to do is to make it a declaratory scheme immediately and for all EU nationals and all relevant individuals who are currently in the UK under the EU treaties to be granted a legal right, as of law, permanently to remain in the UK. They should then be given the opportunity, over a number of years and with no strict cut-off, to register for documents as they need them.
I understand that concern has been expressed about how to encourage people to apply if there is no cut-off. I think that people will need those documents as part of their day-to-day lives and will apply for them when they need to. It is really important that they are not at risk of becoming undocumented because they have not done so. I hesitate to suggest this because we do not agree with it, but at the moment, the penalty for failing to apply is to lose your status. I understand that there are potentially exceptional circumstances or even some good reasons that might mean that you do not lose it, but the default is that you will lose your status. It is not beyond the wit of Government, if they want to, to devise some other incentive scheme that does not involve losing immigration status.
Q In your briefing, you said that you would prefer the UK to have a simpler immigration system overall. Does removing free movement for EU citizens and standardising it for citizens—whether from the EU, the Commonwealth or the rest of the world—not answer your request for a simpler immigration system?
It might if there were any proposal on the table for such a system, but we have not seen one. We have seen a White Paper that would increase the complexity of the system. There is the simplicity of system but also the simplicity of the ways in which people use the system.
At the moment, roughly half of all immigration to the UK occurs under a very simple system. We are now talking about moving all of it into a very complex system. A proposal to simplify the entire system and, importantly, to do so in a way that does not put EU nationals into the current system for non-EU nationals, which is frankly completely unfit for purpose, brutal in many ways and does not work, is something that might be welcomed, but we have not seen such a proposal.
In an ideal world, people from all countries would be treated equally under the immigration system. What I would be careful about is the fact that we have heard a lot from people who have suggested that Brexit provides an opportunity for us to move to that, but the Government’s plans in the White Paper certainly do not provide that because it specifically states that, of course, preferential treatment will continue to be given to people where trade deals require that to be the case. So, yes, in theory, but at the same time I would be reluctant to suggest that I think that is going to happen.
Mr Patel, you have declared your preference for a declaratory EU settlement scheme, which I think is a very good idea. Professor Ryan’s alternative would be simply to remove the cut-off date for applications. Have you any thoughts about the pros and cons of that argument?Q
I think that in effect it is the same thing. I might be wrong if there is no cut-off date. What is someone’s legal status at the end of the transition period or the grace period until they apply? If they are in legal limbo at that stage it seems simpler to grant them the legal right as of law, rather than saying they can apply later and be reinstated, because there might then be a question of what their status was in the intervening period.
Q That is an interesting point, thank you. We heard Professor Manning talking about some of the challenges or problems with the one-year visas that are proposed in the White Paper, as a stop-gap measure for so-called lower-skilled forms of work. He talked about the potential for exploitation and problems with integration. Have you any thoughts on that type of visa?
I think that will inevitably lead to exploitation. It contradicts the reasons that the Government have given for wanting to reduce immigration in the first place. Of course, we do not accept all of these, but in theory there is an idea—not borne out by evidence—that immigration reduces people’s rights in the workplace, because immigrants can be treated less well. That only happens when immigrants are given fewer rights. If they are put on short-term visas, that increases the potential for exploitation.
We do understand that there is concern about integration and people wanting more integrated and cohesive communities. We do not think there is any contradiction between immigration and cohesive communities. What we do think is that, if people are required to come here for a year and then to leave, they will not be able to make those community links.
It may well be that people are rightly resentful of people who come in for a year and then leave, having left no long-standing mark. I think people welcome immigration whereby people are able to come to this country to live as people who belong to this country and, if they choose, to stay as long as they want to put down roots and build families here.
Q On a different question, were you surprised there are no appeal rights for EU citizens in relation to the settled status scheme in the Bill? Or are they expected somewhere else?
I am surprised. The withdrawal agreement clearly sets out that appeal rights will exist. The Government have said that legislation is required to make those appeal rights a reality, which is why we have not got them in the pilot scheme. Therefore, it seems very strange to us that the Bill does not contain that legislation.
Q The Government might suggest that the best place for them is the withdrawal agreement implementation Act, or whatever it will be called, but does that leave us with a problem? The Government seem to be suggesting that there will not be formal rights of appeal in the event of no deal. What are your concerns about that?
That is certainly a concern. All the rights that have been set out for EU nationals under the withdrawal agreement must be available to them in the event of no deal, if it is accepted that those rights are required. Certainly it must be right that people who are denied settled status have the right to appeal to an independent tribunal, rather than having to seek a Home Office administrative review or a judicial review, which is not sufficient to deal with the merits of their case and is very costly both for the Government and for the person pursuing it. There needs to be a simple and fair appeal system in which an independent tribunal can look at the merits of someone’s case when they are denied the right to stay in this country.
First of all, our view is that it would be open to the Government to put forward an immigration Bill that did that very simply, but they would need a plan for the new system. No such plan exists; until it does, ending free movement simply cannot be tenable, for the reasons that we have given. We are not saying that it is invalid for the Government to choose to end free movement. We may disagree about precisely what system will replace it or about whether free movement was the best system in the first place, but that is fine. What you cannot do, however, is end free movement overnight, because that will lead to a situation in which between 3 million and 4 million EU citizens were here with no documentation beyond their EU passport, while new EU migrants were coming in with their EU passport plus some other document. We have in-country immigration checks, and people may want to leave and come back, but they will not be able to until they have been registered and a clear new system has been set out. The Government should have put that forward in the Bill.
Q Do you not recognise that the Bill is a critical component of delivering the 2016 referendum result? That is the question that the previous witness was asked.
I do not see how that is the case. This Bill is premature. If the Government want to deliver that result, they must put forward a system for immigration control that will apply afterwards. They have not done so.
Q The question that I was going to ask about appeal rights has been largely covered, but may I ask whether you feel that it is rather exceptional within our immigration system to deny any appeal rights to a category of people who seek status within the UK?
Unfortunately not. It is important that we also say that appeal rights should be reinstated across all immigration matters. The removal of appeal rights has caused significant problems, which we are seeing in our work—particularly because at the moment, unfortunately, the Home Office is not capable of making decisions correctly. Where people are allowed appeal rights, the success rates on appeal are remarkable: around 50%, or even higher in some categories of case. That should be fixed, and one of the ways to fix it is to have oversight. If caseworkers know that people will be given a right to appeal and legal aid to pursue that right, they will be incentivised to make good decisions in the first place.
Q How confident are you that the option offered by the Home Office of administrative review, and ultimately judicial review, provides any real opportunities for challenge within the system?
The chief inspector’s reports on administrative review have raised some concerns. Simply as a matter of practical reality, administrative review is the
Home Office marking its own work. If it is not getting decisions right the first time, it is not getting decisions right the second time. The point is that people are trying to get through decisions. The Home Office is understaffed. The people making the decisions are undertrained and struggling to get through huge backlogs and delays.
I am not an expert on the internal workings of the Home Office, but in the decisions that it makes you see that frequently people have not read the papers, or have copied and pasted reasons across decisions. Very minor inconsistencies are picked up in order to make rejections. Those things cannot always be corrected by judicial review, because judicial review is a very restrictive form of court oversight. The court cannot remake the decision that the caseworkers made; it can look only at whether it was egregiously irrational or unlawful.
An appeal to the tribunal allows an independent person to look at the case as a whole and to decide what is fair. That corrective mechanism is a key part of ensuring that the Home Office improves its own systems, because there is an external oversight mechanism.
The Bill is premature because there is no plan for what follows. Our primary concern is the Henry VIII powers given to the Home Secretary to remove people’s rights, without the new system having been clearly set out. I know that there is the White Paper, but I also know that it is contested in Cabinet, and is still subject to intense debate.
The White Paper itself raises concerns about, for example, the one-year visas, which would cause exploitation and problems with integration. It also misses the opportunity to fix many of the problems that we saw with Windrush. There is nothing to address Home Office capacity, with so many new people coming through the system, or the problems with the hostile environment, which remain. We know that it causes discrimination, and we have not seen anything from the Government to roll back those provisions, or to thoroughly review them.
Q I am sure that Hansard will correct me if I misheard you, but I think you said very early on in your evidence that short-term visas inevitably lead to exploitation. Do you think that the same holds true for seasonal agricultural worker schemes, or perhaps the tier 5 youth mobility schemes?
I think so, yes. Any kind of scheme relating to someone’s rights in respect of continuing work, changing employment or changing the sector in which they are employed will result in exploitation, because they have fewer rights to move between employers than British nationals.
Q One final question. Under the EU settlement scheme, the plan is that people are not to be presented with a physical document but essentially with a bit of code that the employer can go away and check. Does that give rise to any concerns about how that will work?
Yes. The key reason why discrimination happens under, for example, right to rent is not that landlords, or whoever needs to do the check, are prejudiced; it is the administrative hassle of having to deal with it. It is simple just to check a British passport. By not giving people a physical document, you are creating a massive problem for them in terms of having equal access to work, housing or other things that they might need.