Repeal of the main retained EU law relating to free movement etc

Part of Immigration and Social Security Co-ordination (EU Withdrawal) Bill – in a Public Bill Committee at 9:25 am on 26th February 2019.

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Photo of Kate Green Kate Green Chair, Committee on Standards, Chair, Committee of Privileges, Chair, Committee of Privileges, Chair, Committee on Standards, Chair, Committee on Standards 9:25 am, 26th February 2019

It is a pleasure to serve under your chairmanship, Mr Stringer. I echo the comments of the hon. Member for Cumbernauld, Kilsyth and Kirkintilloch East in thanking the Minister for being so open to colleagues in preparing for consideration of the Bill over the next two weeks.

I, too, believe that freedom of movement has been good for our country and particularly for my constituency. We are a proud manufacturing constituency that offers many skilled jobs, and we have relied heavily over the years on the skills and talents of EEA nationals who come to work in our industries. It is clear that north-west England is destined to suffer most economically from loss of access to EEA labour under free movement rules.

I echo the hon. Gentleman’s remarks about public opinion on freedom of movement. A couple of years ago I had the pleasure to participate in a citizens’ assembly organised by the Constitution Unit of University College London. One of the questions that the participants were asked to address was what kind of immigration arrangements they wanted with the European Union after Brexit. This was a deliberative process carried out with a representative sample of over 100 individuals, exactly mirroring the demographic of the referendum electorate in terms of the vote—leave or remain—geography, ethnicity, age, background and so on.

After two weekends of extensive deliberation, the conclusion the assembly reached was that it was happy with the current free movement arrangements between EU countries, including the UK, but that it just wanted them to be properly enforced. As we heard in oral evidence a couple of weeks ago, the Government have had the opportunity over many decades to impose registration conditions, for example. We have never used them, but they could have offered greater reassurance to the public that the country has a grip on the immigration system.

I want to express some concerns about the implications of endorsing clause 1 today without knowing what we will have in its place. The Government have announced a settlement scheme for EEA nationals already resident in the UK. They can either apply for settled status, if they can demonstrate five years’ residence exercising treaty rights, or for pre-settled status, on the way to achieving that. It is good that EU nationals have already begun to register under that scheme, and many have managed to do that very straightforwardly. However, we know from the evidence we have heard and read that some have experienced difficulties. That is why I feel very strongly—we will debate this later in Committee—that if we are going to apply clause 1, we have to put something in the Bill that protects in statute the rights of all those people so that they are not left in some sort of limbo or black hole until we get to the new immigration system the Government negotiate, perhaps by 2021.

I have particular concerns about the implications of clause 1 in the event that we do not reach a deal for the transition phase; after all, we are only five weeks away from that and the situation it could leave European Union nationals in—in particular, those who arrive after Brexit day of 29 March but before we have the new immigration system in place.

We know, because the Government have announced this, that the intention is to introduce a model of European temporary leave to remain, which would be granted by way of a visa for up to 36 months from the date of application. It would apply to all EU nationals arriving after 29 March and staying for more than three months. However, the combination of clause 2 and the Government’s announcements so far on that system means that there are a number of concerns, which leave us in a legal black hole. The Minister was good enough to answer a number of written questions I posed to her about the scheme, and I received her answers on 12 February.

First, I think I am right that the European temporary leave to remain visa is non-extendable, and anyone on it will need to transfer to a new visa category when the new UK immigration system comes into effect. Given the effect of clause 1, they will be left in a very uncertain position for now as to whether they will be able to stay longer than the 36 months under the European temporary leave to remain visa, with no guarantee that they will be able to switch to a new kind of visa under the new immigration regime.

Secondly, having looked carefully at the Minister’s written answers, I am not clear whether time spent on a European temporary leave to remain visa, post clause 1 and before the new immigration system takes effect, would count towards an application for indefinite leave to remain in due course. If it does not, my understanding is that individuals working on a temporary leave to remain visa would have fewer rights than do non-EU nationals now on tier 2 visas. Will the Minister confirm my understanding and perhaps say more about the Government’s intentions?

As we heard in oral evidence, there is a particular worry about students starting courses in 2019-20 or 2020-21 where those courses are longer than three years. If this clause is passed in the next few weeks, students starting this September will not have certainty about whether they will be able to complete their courses in some cases, because a 36-month visa may not be sufficient. As colleagues from the Scottish National party will know, that covers all undergraduate degrees in Scotland. It covers medicine and dentistry courses, nearly all engineering courses, any course with an integrated masters or placement period, and most PhD programmes—we are already seeing a fall in the number of students from the EU coming to study at PhD level at our Russell Group universities. Students on the European temporary leave to remain visa would not be entitled to a period of post-study work leave on this visa, and would therefore have fewer rights than non-EU nationals on a tier 4 visa, because undergraduates on such a visa for a three-year course are granted four additional months leave after the course end date.

From the Minister’s written answer to me, we do not know exactly what fee will be charged. Most concerning of all perhaps is the position that this limbo will create for employers. It will not be possible for employers to check who is here as a European national with a right to settled status, although they have just not applied for it—after all, they have until 2021 to do so—who is here in the first three months of a visit, having arrived after 29 March; and who has been here for longer than three months and has not chosen—or not been aware that they need—to apply for a European temporary leave to remain visa. That puts employers in a difficult position.

While we have had good assurances from the Home Secretary that there is no expectation that employers should be checking EU nationals in this period, if they employ someone who is not entitled to work in this country, they would none the less potentially be at risk of committing an offence under criminal law. In oral evidence, we heard from Hilary Brown and James Porter that there is considerable confusion among employers about what they need to check, whether they will be checked and what will be looked for. Can the Minister say more about what support will be given to employers in this intervening period? In her written answer, she mentioned that guidance would be produced—I am grateful to hear that—but it would be helpful to the Committee and, more importantly, to employers and individuals if she could say more about what it will contain.

In the meantime, and in conclusion, it seems that the European temporary leave to remain visa, combined with clause 1, leaves us with a system that is not fit for purpose. It will create extra bureaucracy for the Home Office, without giving it any more grip on who is here legitimately if there is no mechanism by which employers or landlords, for example, are expected to check. It troubles me that the Home Office is adding another burden to its administration systems, which will not help it to process the settled status scheme, which we all welcome, as smoothly as possible. For that reason, I feel strongly that it would be premature to endorse clause 1 now. It causes me deep concern, and I hope the Minister will respond to the points I have raised.