Welcome to our next set of witnesses. I think you have got a feel for the way in which we proceed. Your session is just half an hour, but, because there are two of you, it might not be so pressurised. Will you introduce yourselves?
The difficulty of making rules that have such a massive impact on the lives of the people they affect without any scrutiny has meant that people’s rights have not been respected. Furthermore, those making the rules have not had the benefit of input from concerned parties and from Parliament itself.
The complexity of individuals’ lives has not been taken into consideration, especially around issues such as vulnerability where people have been trafficked into the United Kingdom, where they are in circumstances and a situation that is out of the norm. Rules need to be made with all of those situations taken into consideration.
Q We now know that a 12-month visa was previously trialled and abandoned as unworkable. What evidence and information do you have regarding the operation of a 12-month visa?
The 12-month visa was in place in the form of the so-called sectors-based scheme. That was introduced in May 2003 by a House of Commons paper with no parliamentary discussion. It allowed people in less skilled fields to live in the United Kingdom for 12 months. It was abandoned following an investigation by Parliament. According to the Hansard report in 2008, quite significant malfunction and abuse was detected.
The tribunal responsible for immigration also found that there was a considerable amount of hostility towards the rule itself, manifested by those implementing the rule at the visa point. That rule was scrapped altogether by 2008. Tony McNulty, the then Minister of State, observed when scrapping it that the slack, as it were, could be taken up by immigration from what were then the EU accession states. The rule then was not effective. The significant difference between now and then is that there will be no pool of EU workers to take up the slack. What I have just referred to is in parliamentary documentation. It is not my opinion.
I do not think the difficulties faced by the people caught up in the Windrush scandal have been fully addressed. Many people still have not come forward, who have not been identified and who are living under the radar. I do not think it will be a situation where we can avoid a repeat of such a scandal if we are not in a position to fully map out where the deficiencies in the immigration rules lie.
The significant enduring problem is that people are required to establish a right that they say they have. They are required to establish that at short notice, perhaps when they are simply accessing a health service to which they are entitled. The Government have not shifted the onus of proof on those people, so the problem continues.
Furthermore, because of the expanding of immigration control to those who are not qualified to exercise it, such as healthcare professionals and the police, people are not able to determine whether the documents that people present are adequate. There are many examples of that: people holding indefinite leave to remain stamps in an expired passport encounter the difficulty that the passport has expired, therefore the perception is that the Home Office stamp in it has expired, notwithstanding that it explicitly states that it is settled.
People who came into the United Kingdom on other schemes, such as so-called east African Asians who came without passports because they had no citizenship, find it very difficult to establish an entitlement in the UK. They particularly encounter that difficulty when they access something else; they are on the receiving end of Government action when they are not expecting it, and they do not have legal aid. Those are continuing problems that permeate many cities in the United Kingdom and have not been addressed.
I do not profess any expertise on European law, but no doubt European Governments will look at how we treat citizens of European countries and will wonder whether they should treat our own citizens in the same way. I think there will be many vulnerable British people living in European countries who do not quite understand that yet.
I think the Home Office will find it very difficult. It finds it very difficult to make quick and consistent decisions at the moment. Unless the Government propose a significant increase in resources to the Home Office, I think it will find it very difficult to cope with additional case work and a whole set of new rules.
What impact do you think that will have on labour mobility?
Already, it is a very difficult situation. We see that employers are very confused and frightened about whom they should and should not employ. When people who have current leave to remain are about to make an application to extend it, we often see employers bringing their employment to an end, until such time as they have received confirmation that they are able to continue for those individuals.
It is very difficult for employers, because regardless of the guidance they are given, they do not have the skills, knowledge or experience of anxiously scrutinising that guidance. A document may be acceptable, but because they do not have an understanding of the fact that it is an acceptable document, employers often revert back to, “Unless you have a passport with a visa, with a stamp in it that says you are able to work, I am not prepared to run the risk of having a fine, and so I will bring your employment to an end.”
Q Are your clients expecting that they are going to have to start asking questions about people’s status on
Q I have asked this question to different panels—forgive me for that—but you will be answering for the first time. Do you believe there is any justification for having a two-tier system in the future, where EU citizens and their families may get preferential treatment to those from the rest of the world?
I personally think that all people should receive overall fair treatment. I think that currently the family members of EU citizens have an easier set of requirements to satisfy objectively; outside that the Home Office enforce in the most severe and restrictive way possible. I can see no grounds of fairness to suggest that everybody should go down to the lower level of protection that applies under the purely English rules.
Yes, I would. From time to time, those advocating support for the English rules and litigating on behalf of the British Government suggest that the English rules are somehow compatible with European principles.
Yes, the UK rules—sorry. I just did not want to include your nation with such rules, that is all. It was out of courtesy to your nation that I was making that distinction. Presently, people who are advocating for the British Government contend that the rules are compatible with the European provisions. They are clearly not, and the proposal is to reduce the rights of everybody.
Q Our trade relationships would be one reason why you might not apply the same rules to everybody, and that is pretty much why we have free movement now.
Yes, trade relationships may be a reason to justify some kind of other consideration, but they should not be a back-door route into the United Kingdom, for people who can hide behind trade,
Q When you said we should be pushing for fairness for everybody, is that not closer to the mark? It does not mean that everybody comes under the same rules.
Whatever rules are implemented, they should be fair. As I say, there could be other trade agreements, but they should be open to anxious scrutiny and I do not think they should be seen and used as a back-door route into the United Kingdom for people who can afford that.
Q I absolutely agree with you on that point. It should not just be about suddenly allowing the wealthy from country A, B or C to come in. Can you tell me about the tier 2 system? What are your thoughts on how simple that is?
At this time none of the immigration rules is simple. The tier 2 system can be a route into the United Kingdom, again, for people who are able to afford it and those with large reserves of money. I think the system itself needs to be completely overhauled. There needs to be a situation where the UK can look at innovation and other trades and routes. For instance, on the shortage occupation list, there are multi-million pound industries in the United Kingdom that would not be identified unless there was some innovation around whether they should be included in various tier 2 legislation.
Q Mr Hoare, will you comment on how simple or otherwise the tier 2 system is now and? Secondly, do you have any thoughts on how we can make the settled status scheme better for EU nationals who are currently here, whether that is making it a declaratory system, or appeal rights, or whatever else?
First, with the tier 2 system, the process for employers of obtaining a sponsor licence is difficult. It does not receive intense scrutiny by the Home Office. There is no right of challenge to the Home Office decision, and therefore many employers who wish to run a tier 2 scheme to sponsor migrants, although they are bona fide employers, get cases refused and are not able to challenge. The starting point of the scheme is unworkable. The insistence on pedantic documentary requirements, which many employers cannot understand, leads to a lot of cases being refused, so the system is not workable at present.
With regard to your second point, yes, I think there should be simply a declaratory system for EU settled status. If the British Government wish to require EU citizens to justify and document every day of their existence in the United Kingdom when at the time they did not know they would have to do it, it will lead to a load of perverse and unfair outcomes.
Q Ms Brown, any thoughts on improvements to the settled status scheme? We have heard people suggest making it declaratory, or appeal rights.
Aside from the cost of the appeal to the tribunal, which is over £100, the cost of appealing is not a cost that can just be measured in the cost of the application to the tribunal. There is often the cost of getting representation and having to obtain evidence to go before the various tribunals. There is the cost of certifying and obtaining documents. The withdrawal of legal aid often means that for people to be able to get before a tribunal with a robust bundle of evidence giving some sort of chance of demonstrating that the appeal should be granted, they must be able to find something in the region of £1,000 or £2,000—maybe £3,000. That is just to get together a bundle of evidence to go before a tribunal with a remote chance of succeeding. All too often people just cannot afford that. The fact that we have to put bundles together in a way that proves the documents and evidence they rely on will stand up to independent and anxious scrutiny, and the denial of legal aid, prevent people from getting access to justice.
There are high numbers of people who are quickly detained when they are initially detected by various means—people who have trafficking offences and who have been randomly stopped by police and immigration authorities. In the first instance, they are taken to police stations and not given access to appropriately qualified immigration advisers. They are denied access to any type of legal advice in a police station. Often, and unnecessarily, that sees individuals referred on to immigration removal centres, which clogs up immigration removal centres unnecessarily. They then have to make bail applications to the various immigration tribunals. Often people are then released on bail, only having identified for the first time that they have some kind of irregular immigration status.
Detention is used far too often—and for over extended periods of time— unnecessarily. If a similar type of system was offered to immigration detainees as to people who face criminal offences in police stations, such as a duty solicitor scheme or a duty representative scheme for immigration issues, I certainly think there would be far fewer immigration detentions.
On fees, to make an application to stay in the United Kingdom for 30 months, one has to pay £1,033 at the moment. That may apply to people who have been working in the United Kingdom. If somebody had their leave to remain cancelled with no right of appeal, their option would be to make a new application. To do that, they would have to pay £1,033. If they did not have £1,033, they would face removal from the United Kingdom.
Another aspect of the fee system is that an applicant has to find, for a period of two and a half years, £1,000 to pay towards the NHS. When that was introduced, the rationale was that people who are living here illegally should not use the NHS. The scheme would apply to someone who had been here lawfully for seven and a half years paying tax and national insurance. If they want their last two and a half years in the United Kingdom, they have to pay another £1,000 for it. Over a period of 10 years, someone living in the United Kingdom perfectly lawfully and paying tax and national insurance has to find another £10,000 to fund the NHS.
Q You both mentioned the anxiety that employers might have regarding somebody’s right to work. Do you regard the digital right-to-work checks as a step forward?
If employers understand that there is a digital check system, it would be a step forward. The people answering the checks are not infallible. The system is very complicated. If the wrong advice is given, there is no way for an employer to check that.
Another aspect I have come across in advising employers is that they cannot determine whether documents are genuine. A digitalised check does not address that properly. Employers find that, notwithstanding having conducted checks, they have unwittingly employed somebody with a document that looks fine when it is checked digitally but that is not fine. The employer then faces criminal sanctions as a result. That is happening to people.
Q Which, of course, it doesn’t. It requires people to evidence their identity and residence. We have seen from the testing phases that more than 80% of people have been able to do that with no additional documents, just by using their HMRC or DWP records. Of course, it asks them to declare any criminal convictions. Do you think it is scaremongering a little to say “if” the EU settled status system required people to evidence every day of their existence, when it simply does not.
Pre, which is less than. It is the same thing. That may be because people cannot document the earliest time in the United Kingdom, because notwithstanding their subjective compliance with employment rules, there are cases where tax and national insurance have not been credited by employers. It is not scaremongering—that is the factual reality for many people.
And in the scheme that has existed so far, there have been cases where people have paid tax and national insurance to their employer but it has not been credited. That has been a problem. Secondly, the results that have come back to the Home Office on tax and national insurance records are different from the results that people have obtained by their own freedom of information inquiries with the Revenue.
You are conscious of the very high levels of people in the testing phases of the system who have reached either pre-settled or settled status—are you happy with that?Q
I am aware of it, but pre-settled status indicates that there is likely to be a component of those people who would be entitled to settled status, but because of deficiencies not of their own making with regard to the recording of their presence and economic activity, are given pre-settled status, which is lower.
The form says that there is a charge. At the end of the form, one is told that the charge that one has just paid will not be levied, but that still means that some people get less than they are entitled to. They have been here for more than five years, but the record-keeping system is not adequate so they are not given that to which they are entitled.
Yes, of course I am conscious of that, but unless the existing parameters of decision making in the Home Office change, one will see further evidence of injustice arising from that process.