At Justice we have deep concerns about the potential reach of clause 4, which provides extremely broad delegated powers to the Minister of State in connection with repeal of the current free movement provisions relating to EEA nationals. Of course the provisions have to enable the repeal of those measures after we leave the EU, but it is not at all clear from the Bill what is intended to replace them. We consider that a number of changes are necessary, and we will provide separate detail on those subsequently in our written evidence—I apologise for not having that before you now, but we will provide the detail this afternoon.
First, the primary policy aims ought to be stated on the face of the Bill in primary legislation, so that Parliament has the opportunity to scrutinise those principles and amend them as appropriate. Those provisions would be to enable the accrued rights of EEA nationals who currently have settled status in this country to remain and for the transitional provisions surrounding those rights to be introduced in a clear way. Currently, the Government have proposals on both issues, and we see no reason why they could not put them on the face of the Bill. I can come back to that in more detail.
Secondly, we consider that the delegated powers set out in clause 4 should be substantially limited. The memorandum on delegated powers that the Government have provided seeks to explain that the two key aims of that clause are to deal with technical amendments to remove references that are no longer appropriate to the EU from legislation and also to protect the accrued rights of EU and EEA nationals. If that is the intended aim, those can be the powers as set out in the Bill, and we would propose that it be constrained in that way, through a provision relating to technical amendments and a power to provide consequential amendments that will give effect to accrued rights.
In our view, there are additional consequences from that relating to section 3 of the Immigration Act 1971, which provides for the immigration rules. In these circumstances, which to a certain extent are unique and will create the biggest change to immigration policy since the Maastricht treaty in 1992, we suggest that the power to make those changes ought not to be left simply to immigration rules but should be set out in the Bill, or the use of section 3 of Immigration Act to do so should be specifically constrained as an alternative to the Bill. If you would like me to go into any of those points in a bit more detail, I can do so, but I wanted to set out our primary concerns about the way the delegated power operates.
Liberty would echo those concerns. We are really quite concerned about clause 4, and particularly the fact that the purpose of regulations under the clause may be not just in consequence of the repeal of retained EU legislation relating to free movement, but in connection with that purpose. In our view, essentially any change to the immigration system for the foreseeable future will be in connection with the end of free movement, and therefore we are delegating a huge amount of power to the Secretary of State, effectively sidelining Parliament in a really significant policy change.
Q The Bill would bring EEA citizens under UK immigration law and into the hostile environment. What do you think the impact has been of the hostile environment thus far? What would be the effect of extending it in the Bill?
The impact of the hostile environment has really been laid bare by the Windrush scandal, and I would like to set Liberty’s comments in that context. We have seen people who had a right to be here made destitute, losing their livelihoods, and potentially being unable to come back into the country that they have called their home for decades. Some people have died as a result of the stress.
That is the impact of the Windrush scandal, but of course the effects of the hostile environment are not limited to Windrush citizens; it reverberates among undocumented people more generally. Those impacts are to do with children being afraid to go to school because of data sharing between the Home Office and the Department for Education, and people, some of whom are supposed to be receiving palliative care, being charged tens of thousands of pounds for medical treatment. We have seen victims and witnesses of serious crime deterred from reporting those crimes to the police. The impact is not just on the fundamental rights of undocumented people; the impact is to warp our public services and turn our teachers and doctors into border guards.
More generally, we see an environment of suspicion towards anybody who seems visibly foreign or who is black or minority ethnic. That discriminatory effect has been evidenced by the research of the Joint Council for the Welfare of Immigrants into landlord checks. We see that landlords are less likely to rent to BAME people without a passport as opposed to white people. We have seen incredibly broad and harmful effects of the hostile environment on the rights of undocumented people, people with a right to be here, British citizens and our public services.
Our concern is that the Bill essentially hands Ministers a blank cheque to bring millions more people into that system while doing nothing to remedy the injustices that have been exposed. We recommend that the hostile environment be repealed and that vital safeguards are restored to the immigration system, such as data protection rights and legal aid, and that there is also an end to indefinite immigration detention.
Q On the question of indefinite detention, why have you proposed a 28-day limit on immigration detention? Why is that particularly needed in the context of the Bill?
It is important to say first that the 28-day time limit on immigration detention is not Liberty’s proposal. The Joint Committee on Human Rights proposed that back in 2006 or 2007. A joint inquiry by the all-party parliamentary groups on migration and on refugees, which I know some of you were involved with, also recommended a 28-day time limit on detention. Why do we think the Bill is the place to implement that time limit? Put very simply, the Bill will most likely make tens of thousands more people liable to deportation, because EEA nationals will come under the automatic deportation provisions in the UK Borders Act 2007.
We know that the Ministry of Justice, in response to a freedom of information request, said that it expects that up to 26,000 people per year could be liable to detention as EU nationals come under domestic immigration law. At the same time, a parliamentary question revealed that there has been no assessment of the impact of the Bill on the detention estate. Of course, we know what the impact of indefinite detention is on people. They tell us that it is traumatic. They tell us that the lack of a time limit in itself is traumatic, because they do not know when their detention will end.
Liberty is not alone in advocating for a time limit. The lack of a time limit has been criticised by the United Nations High Commissioner for Refugees, the Bar Council and the British Medical Association, and on Second Reading parliamentarians from across the House stood up in support of a 28-day time limit. Given that the Bill is very likely to make more people vulnerable to detention, now is absolutely the time to implement a time limit on detention for everybody and, indeed, to begin looking at taking deprivation of liberty out of the immigration system more broadly.
Q Either or both of you can answer this question. Is there any justification for creating an immigration system post Brexit that treats EU nationals better than those from the rest of the world? If so, how do you imagine that would be best achieved? If you think there is no justification, that is a reasonable answer.
It is not something that we at Justice specifically have an opinion on, other than to say that the arrangements that are created must ensure that the acquired rights that people currently exercise as a consequence of their movement between the UK and the EU are protected, and that the process that is decided for those individuals post exit needs to be subject to the scrutiny of Parliament and not decided simply through a delegated power without sufficient scrutiny. That is why we say the procedure ought to be encapsulated in the Bill through a requirement that such a policy must be subject to the scrutiny of Parliament.
There are two schemes that the Government have already implemented and will come to fruition once we leave: the EU settlement scheme for those who are already in this country and are requesting settlement, if they do not already have that status; and the proposal for temporary leave to remain for people coming into the country who wish to remain and work here. Given that one of those schemes is already in the immigration rules and the other is well advanced, so there must be policy for it, it seems to us entirely appropriate that the procedure should be laid before Parliament in the Bill and be subject to scrutiny, rather than simply left to a delegated power that does not provide you with the opportunity to debate the important issues concerning what preferential treatment EU nationals should be given.
It is not a position that Justice specifically holds. Our concern is ensuring that the procedures are fair and appropriate, and, if it is the view of the country that EU nationals should have preferential treatment, that there is a procedure in place to enable them to obtain it. That should include a right of appeal—one that is clear and open and that they are able to use—which currently is not provided for in the EU settlement scheme.
Liberty would not really have a view, because we do not take a view on the immigration system in general. Our view would be that there should be minimum rights standards below which nobody should fall, related to convention rights, protection from indefinite detention, data protection, legal aid, etc., but on people coming in and out of the country, salary thresholds and things such as that, we do not take a view.
Q Could I turn to you first, Ms Blackstock? You were talking about improving the settled status scheme and putting it in the Bill. Do you think that scheme should be a declaratory scheme or the one that we have now, where essentially you do not have any rights until you have applied under the scheme? Do you understand the question I am getting at?
Q Sure. In evidence this morning, we heard concerns raised about the risk that tens of thousands, probably hundreds of thousands, of people will miss the deadline and in doing so will end up with absolutely no status and subject to all the hostile environment measures that we heard about earlier. If you make the scheme declaratory—I think that is the word that the Joint Council for the Welfare of Immigrants used—you are essentially getting that document just as evidence of rights that you already have thanks to the Bill, rather than having to apply before you have any rights. It would be somewhat similar to the permanent resident scheme we have now. Does that make any sense to you at all?
It does. There is certainly some sense in that argument. What it demonstrates is the difficulty of the gap that will be created with the repeal of these measures. Having a scheme that someone has to apply for means that they have to make that effort, and while their application is being processed, their status is uncertain. Indeed, it may be processed in error, which requires an appeal right, during which their status is also uncertain. We suggest that the transitional arrangements for that group of people should also be in the Bill, with a policy requirement to extend those accrued rights for that group of people until such time as their settled status is determined by way of the scheme.
The reality is that this scheme is currently in a pilot state and only a certain group of people can apply for it until exit day, when it becomes live. At the moment, they have an entitlement to remain here anyway. Even if people were fully able to apply now, they might not realise that they have that right. We have to make provision for that group of people before their status is confirmed. That should be done by way of a transitional arrangement. It could be simply by declaration, but either way, that is a transitional provision that should be clear in the Bill.
Q Any thoughts on that, Ms Bradley? Do you have concerns about how to fix or address this problem? Inevitably, even if the Home Office does a fantastic job and gets 90% or 95% of EU citizens through the process in time, we are still talking about tens of thousands, if not hundreds of thousands, of people who will miss the deadline. How do we prevent that from happening?
I cannot say that Liberty has briefed on this, but I would reiterate that there are basic safeguards that should be reinstated to the immigration system. We should ensure that people have access to legal aid, we should ensure that people have access to data protection rights so that they know on what basis the Home Office is granting or refusing them status, thinking about the automated checks, and we should protect them from a hostile environment. At the minute, the system is not geared towards helping people retain or access regular status, and as such the price that people pay for not having regular status is far too high.
Q In terms of decisions where people have been refused settled status so far, what is your understanding of how much information people are given about what the Home Office has learned about how long they have been here, or how long it considers them to have been here?
Q No worries at all. Jodie Blackstock, you spoke about the section 3 powers that Ministers have to make immigration rules and said that you wanted them limited in some way. Could you say a little more about that?
Section 3 of the Immigration Act 1971 creates the provision to amend immigration rules, to administer the immigration scheme that the country gives effect to. As with the powers in the Bill, our concern is that that creates a very broad provision for the Minister to amend the rules, to replace the free movement process with something that would not be subject to sufficient scrutiny by Parliament. Our proposal is for an amendment to limit the ability of the Government to use immigration rules to amend the law to give effect to post-Brexit arrangements.
Liberty has taken a slightly different approach, recognising that, as you will have seen, the Law Commission has said that the immigration rules are incredibly complex; I think there has been more than 5,000 changes to them since 2010. Liberty is increasingly concerned that the rules are being used to make changes to immigration policy that affect people’s fundamental rights. We are looking at an amendment that stipulates that rules may not be made under that section of the Immigration Act where they risk a significant negative impact on human rights, and that Ministers should have to publish a human rights impact assessment when making changes to immigration rules.
Part of the reason why we are where we are is that we have had thousands of changes to the rules and significant policy changes that should have been set out in primary legislation. The Bill demonstrates a problem that has been running for years in immigration policy making.
It is very unclear, because the power to arrange the post-exit scheme is left to the Minister. That is our concern. Its impact could be profound or negligible, depending on what policy process the Government put in place.
The proposals for the temporary leave to remain scheme would enable someone to go through a process of application if they wanted to settle in this country, for work or otherwise. The proposals in that scheme, which I have not looked at so cannot assess, ought to be within the Bill, so that the Committee can scrutinise them properly. The problem is that by enabling everything to be done using such a broad delegated power, you are not in a position to know.
With the way we are going, this will be left until post exit to be scrutinised, with the Bill proposing using the affirmative process for the first set of regulations, which we think is wholly inadequate, for the reasons we have given. If the scheme is already proposed, in draft or otherwise, it should be in the Bill, not left until the last minute to be announced, at which point it will not be possible to propose amendments to it. Our view is that it is a very simple step for the Government to bring forward their proposals for scrutiny, and they ought to do so for something that will create such a significant change.
Q I would like to ask you about social security rights. To what extent does the Bill protect, or fail to protect, the existing social security rights of EU nationals in the UK? Given that those rights and the arrangements that apply are reciprocal, what are the implications of the legislation for UK citizens living elsewhere in the EU?
The Bill does not protect those rights, because it does not set out the principles by which it will do so. It simply provides the structure for the removal of all current reciprocal arrangements. As with the discussion we had on clause 4, it creates the power for not only a Minister but an appropriate authority to replace those current rights with an alternative arrangement.
For us, clause 5 is the most concerning clause in the Bill, as if clause 4 was not concerning enough. Our view is that the clause ought to be entirely deleted, and we say that for a few reasons—not just the extraordinary breadth of power that it creates, but the fact that the provision to remove the co-ordination regulations and replace them is already provided for by way of section 8 of the European Union (Withdrawal) Act 2018. Indeed, there are four regulations that have already been laid, pursuant to that Act, before Parliament and that comply with what are perhaps broad powers, but at least are curtailed far more than the power here; and, because they have been laid, it is possible for them to be scrutinised by Parliament.
Q Can you offer an explanation or a suggestion as to why, in addition to the powers that already exist in section 8 of the European Union (Withdrawal) Act, we need these provisions?
The memorandum suggests that Government require the ability to change policy on social security co-ordination, and that is the purpose of creating a power here. Policy change would arguably not be possible under section 8 of the withdrawal Act, so Government are intending to do something broader here. In our view, it is wholly inappropriate to be changing policy relating to really fundamental provision for people who cross borders. We are talking about pension rights, access to healthcare, maternity and paternity leave—provision that may have built up over a significant number of years while a UK national resides in another EU country. It is simply not appropriate to leave that to a policy change by way of delegated power, but it seems to us, from their memorandum, that Government are expressly intending to do that to get around the limitations in section 8.
When it comes to data protection, many of you will be aware that the Data Protection Act 2018 includes a very broad exemption that allows a data controller to set aside somebody’s data protection rights when their data is being processed for the purposes of immigration control, essentially. Liberty notes from the White Paper that automated data processing is likely to be used increasingly in the context of enforcing the hostile environment, and Liberty has, for the last couple of years, been scrutinising what have been relatively secret bulk data-sharing agreements between the Home Office and other Departments, such as the Department for Education, and NHS Digital, as well as ad hoc data-sharing practices between individual police forces and the Home Office.
Essentially, what Liberty is concerned about is the fact that the Home Office is really quite a poor data controller, and yet automated data processing is increasingly going to be the linchpin of implementing the hostile environment. We see, in the most recent independent chief inspector of borders and immigration report, that actually the Home Office is developing a status-checking project that would essentially enable multiple controllers, such as landlords, employers, health services and law enforcement, to check a person’s immigration status in real time.
Liberty is concerned, first, that no mention was made of that project during the Data Protection Bill debates, despite Government being asked repeatedly what they wanted that exemption from data protection law for. Secondly, we are concerned, in the light of the Home Office’s track record on data protection, that this system is going to be implemented in such a way as to leave people without redress and without remedy when the Home Office makes mistakes.
Some of you will remember that, in 2012, Capita was contracted to text almost 40,000 people suspected of being in the UK illegally, telling them to leave the country. Those 40,000 texts were sent, and many people received the texts in error. Veteran anti-racism campaigners who had lawful status in the UK were sent texts telling them to go home. It is one thing to send somebody a text in 2012—I appreciate that will have been distressing for people—but it is entirely another thing for an error on someone’s record to mean that they cannot access housing, lawful work, free healthcare or education. The Data Protection Act immigration exemption stops people from being able to find out what information is held about them by a data processor, and stops them from having the right to know when information on them is shared between processors.
Our concern is that, in the context of the Home Office’s relatively poor track record on data processing, this digitised hostile environment will be enacted and people will be left without redress. Indeed, we see from the National Audit Office report on the Windrush scandal that the Home Office had been asked by the NAO and the independent chief inspector of borders and immigration to clean up its migrant refusal pool, and had resisted all requests to do so. We are concerned about the impact of error on people, but we are also concerned about the impact of being able, at the click of a button, to exclude people from essential goods and services that are necessary for the exercise of their fundamental rights. The hostile environment should be repealed, rather than entrenched using exemptions in data protection law.
You also asked me about legal aid. I do not have a huge amount to say about legal aid, except that for the most part, there is no legal aid for immigration claims. Again, we see from the Windrush scandal what happens when people do not have access to early, good-quality legal advice. There are people in the UK who are undocumented, not because they have intentionally tried to evade the rules, but because they have been unable to retain their status as a result of not being able to access good-quality legal advice—or, indeed, because they have been unable to make the necessary applications because they cannot afford to pay prohibitive application fees. Many of you will know that it costs more than £1,000 to register a child as a British citizen.
When it comes to safeguards, we would say: get rid of that exemption in the Data Protection Act—it is paragraph 4 of schedule 2—reinstate immigration legal aid, because it is a false economy not to give people access to it, and look again at your fees. It should not be the case that the Home Office is profiting from fees when people need to make applications to regularise their status in the UK, or to claim British citizenship—to which children should be entitled in any event. Those are the basic safeguards that need to be reinstated before millions more people are brought into the immigration system.
Q I have a question for Justice. In relation to the discussion we were having about the powers in clause 5, is there anything that Ministers would need those powers to do that is not already within their power and would not warrant primary legislation?
In principle, there will be. At the moment, we have complicated reciprocal arrangements that require member states to give effect to policy schemes across borders. Without an agreement in place, we could unilaterally make a decision to honour those schemes in this jurisdiction, and that might be seen as a policy change that it is not possible to make pursuant to section 8 of the withdrawal Act. That might be a positive way of protecting the rights of individuals who have access to such schemes at the moment in the UK, or indeed the rights of UK nationals who are living abroad.
If that is the intention of the legislation, there must be—as the Delegated Powers and Regulatory Reform Committee has said in the context of the made affirmative procedure—work that has been undertaken already, and proposals that Parliament can consider and scrutinise to ensure that they protect accrued rights. There may well be a policy decision to limit those rights, and for the same reasons we think it is appropriate that Parliament gets to see those proposals. At the moment, the provisions in this Bill, as opposed to the regulations that have been submitted under section 8 of the Act, are just too broad. We propose that there should be scrutiny of those regulations rather than having an unknown power here.
Q This is another question for Liberty. You talked about 5,000 changes since 2010. That is huge, and it is why people say that our immigration system is really complex. We have also had the Law Commission talking about trying to simplify it. Would you not expect the Government to look at that first, before they add in another 3 million or 4 million EU citizens who will be subject to these immigration laws?
Absolutely. There are many things that I would have expected the Government to do before bringing forward this Bill, not least setting out the detail of the future immigration system, so that it could be appropriately scrutinised.
The Law Commission’s proposals are another thing that we think the Government should have looked at, but they have not necessarily looked at. Although I appreciate that the Government have given themselves this very broad delegated power, through which they may be able to implement future changes to the immigration system that take those proposals into account, when it comes to policy making that affects people’s lives, livelihoods and fundamental rights, that is not the right way to make policy.
Q Can I pick up on a point that you touched on earlier, Ms Blackstock, and which we talked about with earlier witnesses—the right of appeal for settled status? The Government have previously suggested that the process would be a relatively straightforward one, with very few areas of discretion. There does, however, seem to be some grey area in relation to how the Home Office might be able to treat those who have not exercised treaty rights, and so there is a potential for refusals that might require challenge. If there is no formal process of appeal, how satisfactory do you both think that the remaining options provided for people—administrative review and judicial review—are in exercising rights?
The problem with simply relying on judicial review as a mechanism is the difficulty in mounting a judicial review now, as a result of the changes made to access to legal aid prior to permission for judicial review, and the fact that judicial review is not perfect. In order to be successful in a judicial review, you need to demonstrate that the process by which the decision was made was flawed. That does not remake the decision; it sends the decision back to be made again, according to whatever error needs to be addressed. That, in itself, seems to be the most bureaucratic and inappropriate method for what is, as you say, potentially a simple grey area that requires a simple review.
Internal administrative review might be a sensible solution if it was not set against the context of a Home Office that has been struggling, as we know, for the past few years to make decisions in a way that provides public confidence. Without an independent appeal right, we are concerned that that would be all that was available. We are talking about a significant number of people who will apply to this scheme, with every potential for there to be inadequate administrative provision to deal with it, so an appeal right seems pretty important to us.
Q I think you have both mentioned the Law Commission review and its publication of the consultation paper on how the immigration rules could be simplified. You will not get any argument from me about the idea that the rules could be simpler. I wondered whether you had both responded to that consultation, and whether—in as short a period as possible—you could set out any specific simplifications that you have asked for?
We did not respond to it, but we have spoken to the Law Commission in general about the need for simplification of procedural rules for people across the justice system. Our report “Understanding Courts”, which we produced a couple of weeks ago, calls for simplification so that litigants in person—or anyone seeking to use our justice system—can understand the system. The fact that immigration rules can be amended so swiftly and there is no requirement for primary scrutiny of those changes is problematic, but at the same time we accept that the rules deal with an incredibly complex set of arrangements, so some careful thought will be required about how to simplify those rules.
Q Simplification could be something along the lines of ending free movement and bringing EU citizens in line with the rest of the world. Do you think that is a welcome simplification?
As I said in response to a previous question, Justice would not take a view on whether it was appropriate simply to remove the free movement process entirely and have the scheme that applies to third countries. Our concern is to ensure that people who are caught in the gap between those two schemes have their rights protected, if they currently exercise such rights, and that they are able to access the replacement scheme, whatever it may be, in a way that is clear and fair, and is subject to appropriate appeal.
Q I have a final question on data and data sharing. I am going to gently correct something Ms Blackstock said about the settled status scheme: it is now in its public testing phase, so it is open for anyone to apply—it is not limited cohorts any more. We know from phases 1 and 2 that in excess of 80% of the people who have been through the process and been granted settled status have achieved that without having to provide any additional information on top of their records with Her Majesty’s Revenue and Customs or the Department for Work and Pensions. Is there a case to make that in some instances when Government share data across Departments, it can be a force for good?
Yes. I really want to reiterate that Liberty is not opposed to data sharing per se, because that would be a somewhat luddite position. Where data sharing makes people afraid to access the central services that are necessary for the exercise of their fundamental rights, we would say that that is a problem, and that there should be a firewall between those essential services and Home Office immigration enforcement. However, the services that I have in mind are, of course, things such as education, healthcare and the ability to report crimes to the police. I am not really thinking about DWP or HMRC stuff, because I would not say that that is necessarily to do with essential services that relate to people’s exercise of their fundamental rights. We are not against all data sharing, but we are very concerned about some data sharing, where it stops people from accessing their fundamental rights.
If there are no other questions, I thank our two witnesses very much for the time they have spent with us and the evidence they have given. We can start our next session a little early.