Consequential etc provision

Part of Immigration and Social Security Co-ordination (EU Withdrawal) Bill – in a Public Bill Committee at 4:15 pm on 26th February 2019.

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Photo of Caroline Nokes Caroline Nokes The Minister for Immigration 4:15 pm, 26th February 2019

I appreciate the positive intent behind the amendment, which seeks to create a means whereby, in the future, EU nationals will be able to join a spouse, partner or parent in the UK who is either a British citizen or is settled here, but without being subject to the current and established financial requirements for family migration. No doubt the intention is to be helpful to that group of people and their family members in the UK.

However, the practical effect would not be to maintain the status quo for EU citizens but to create a separate and preferential family migration system for EU family members when compared with the situation of British or settled people’s family members who are not EU nationals. This would clearly lead to a perception that non-EU families are discriminated against for no reason other than their nationality, and may well be regarded as unlawful for that very reason.

The possibly unwitting introduction of direct discrimination is the Government’s main reason for objecting to the amendment, but I also draw attention to the terms of the amendment itself. It would replace the minimum income requirement for British citizens and settled persons sponsoring EU family members with a test that has three separate components: being able to maintain and accommodate the family without recourse to public funds; taking account of the prospective earnings of the EU national seeking entry; and taking into account any third-party support available. I will address each in turn.

The first component takes us back to the days before the minimum income requirement was introduced. It was partly because the test for whether a family can maintain and accommodate itself without recourse to public funds was difficult to apply in a consistent way that the minimum income requirement was introduced. Quite simply, it means different things to different people. Neither applicants nor case workers were clear about what income a family would need.

The purpose of the minimum income requirement is to provide certainty by ensuring that family migrants are supported at a reasonable and consistent level so that they do not become a burden on the taxpayer and can participate sufficiently in everyday life, to facilitate their integration into British society. I remind hon. Members that the minimum income requirement has been raised on in-depth analysis and advice from the independent Migration Advisory Committee.

The second and third component introduced by this amendment, that we take into account the prospective earnings of the incoming EU national family members and any third party support available, are already present in the consideration of the minimum income requirement. Where the minimum income requirement is not met, the immigration rules ensure that we take into account prospective earnings of the partner and third-party support that is available. That happens as part of necessary consideration of whether, despite not meeting the minimum income requirement, there are exceptional circumstances that would make refusal of the application a breach of the right to respect for family life under the European convention on human rights. That consideration takes place in all cases.

British citizens and settled persons who want to be joined by family members who are EU citizens will benefit from these considerations without the need for this amendment. I want to emphasise that the proposed amendment would effectively undermine the sound basis on which family migration to this country has been placed in recent years. In particular, it would circumvent the need for family migration to be on a basis whereby families are self-supporting and able to contribute to the UK. It was for this reason that the minimum income requirement was set out in the immigration rules. The Supreme Court has upheld this requirement as lawful and there is no justifiable reason to avoid this requirement in the future by giving preferential treatment to family members based solely on their nationality. It is also unlikely to be lawful to do so.

The immigration rules on family migration, which this amendment will effectively undermine, are designed to prevent burdens on the taxpayer, promote integration and tackle abuse—and thereby ensure that family migration to the UK is on a properly sustainable basis that is fair to migrants and the wider community. These rules are helping to restore public confidence in the immigration system. The amendment proposed by hon. Members, well intended as it may be, has the potential to reverse that.

I would like to pick up the particular point about Surinder Singh cases and to confirm that in a deal scenario, non-EU citizen family members of British citizens who are lawfully resident in the UK by 31 December 2020, by virtue of regulation 9 of the EEA regulations—the Surinder Singh route—will be eligible to apply for status under the EU settlement scheme when it is rolled out fully on 30 March.

The introduction of a dual family migration system, as required by this amendment, would not be seen in a uniformly positive way by British citizens and persons settled here. It would lead to an undesirable two-tier system of family migration, in which family members who are EU nationals are given preferential treatment over non-EU family members. For those reasons, I request that hon. Members withdraw the amendment.