“Super-affirmative procedures for immigration rules

Immigration and Social Security Co-ordination (EU Withdrawal) Bill – in a Public Bill Committee at 10:15 am on 5th March 2019.

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‘(1) The Immigration Act 1971 is amended in accordance with subsection (2).

(2) After section 3(2) insert—

“(2A) Any statement of the rules, or of any changes to the rules, which affect the rights and obligations of persons who will lose their right of freedom of movement under the provisions of the Immigration and Social Security Co-Ordination (EU Withdrawal) Act may not be made or have effect unless the Secretary of State has complied with subsections (2B) to (2F) below.

(2B) If the Secretary of State proposes to make changes to the rules under section (2A) above, the Secretary of State must lay before parliament a document that—

(a) explains the proposal; and

(b) sets it out in the form of a draft order.

(2C) During the period of 60 days beginning with the day on which the document was laid under subsection (2B) (the “60-day period”), the Secretary of State may not lay before Parliament a draft order to give effect to the proposal (with or without modification).

(2D) In preparing a draft order under section (2A) above, the Secretary of State must have regard to any of the following that are made with regard to the draft order during the 60-day period—

(a) any representations; and

(b) any recommendations of a committee of either House of Parliament charged with reporting on the draft order.

(2E) When laying before Parliament a draft order to give effect to the proposal (with or without modifications), the Secretary of State must also lay a document that explains any changes made to the proposal contained in the document under subsection (2B).

(2F) In calculating the 60-day period, no account is to be taken of any time during which Parliament is dissolved or prorogued or during which either House is not adjourned for more than 4 days.” —(Afzal Khan.)

This new clause would amend the Immigration Act 1971 to ensure that any changes to the UK’s Immigration Rules which affect EEA or Swiss nationals must be made under the super affirmative procedure.

Brought up, and read the First time.

Photo of Afzal Khan Afzal Khan Shadow Minister (Home Office) (Immigration)

I beg to move, That the clause be read a Second time.

Photo of Graham Stringer Graham Stringer Labour, Blackley and Broughton

With this it will be convenient to discuss the following:

New clause 40—Procedures before making and amending Immigration Rules—

“(1) Prior to making any amendments to Immigration Rules or making new Immigration Rules that impact upon persons whose right of free movement is ended by section 1 and schedule 1, the Secretary of State must lay before the House—

(a) an assessment of the impact of the proposed amendments or Rules on modern slavery, and

(b) an assessment of the impact of the proposed amendments or Rules on children.

(2) Prior to any amendments to Immigration Rules or new Rules coming into force that impact upon persons whose right of free movement is ended by section 1 and schedule 1, the Secretary of State must—

(a) lay a draft of the amendments or Rules before the House of Commons

(b) table an amendable motion for debate in respect of the draft amendments or Rules.

(3) Amendments to the motion tabled under subsection (2)(b) may instruct the Secretary of State to change the proposed amendments to the Immigration Rules or new Rules.”

This new clause would mean that changes to the Immigration Rules affecting people whose right of free movement is removed by the Bill were debated in Parliament, and that the Government could be instructed to amend the rules.

New clause 54—Immigration Rules Advisory Committee for relevant Immigration Rules—

“(1) Within 6 months of this Act coming into force, the Secretary of State must establish an Immigration Rules Advisory Committee to consider relevant Immigration Rules.

(2) In this section ‘relevant Immigration Rules’ mean Immigration Rules that apply to persons whose right of free movement is ended by section 1 and schedule 1 of this Act.

(3) The function of the Immigration Rules Advisory Committee shall be to give advice and assistance to the Secretary of State in connection with the discharge of his functions under this Act and in particular in relation to the making of relevant Immigration Rules.

(4) The constitution of the Immigration Rules Advisory Committee shall be set out in regulations.

(5) The Secretary of State shall furnish the Immigration Rules Advisory Committee with such information as the Committee may reasonably require for the proper discharge of its functions.”

Photo of Afzal Khan Afzal Khan Shadow Minister (Home Office) (Immigration)

This new clause requires that any changes to the UK’s immigration rules which affect EEA or Swiss nationals must be made under the super-affirmative procedure. As with many of our amendments, we would prefer the measure to be applied to rules affecting all migrants, but the scope of the Bill requires us to narrow it to EEA and Swiss nationals. The new clauses tabled by the SNP would similarly require a higher level of scrutiny for immigration rule changes, and, as such, we support them.

If the Secretary of State proposes to make changes to the rules, the super-affirmative procedure requires him or her to lay before Parliament a document that explains the proposal and sets it out in draft form. Over the years, immigration rules have become so long, complex and internally inconsistent that they are almost impossible for lawyers to understand, let alone for normal people who try to navigate them without legal aid or appeal rights. The new clause complements our efforts in amendments to clause 4, as well as in amendments 17 and 21 to clause 7 and in new clause 10, to make the immigration system intelligible and hold the Home Office sufficiently accountable for its decisions.

Not everything can be done through primary legislation, but since the Immigration Act 1971 almost everything has been done through secondary legislation. The negative procedure, whereby there is no discussion of the legislation unless parliamentarians kick up a fuss, has become the standard. Immigration rules are made very frequently, often in response to political scandals, without an eye on the long-term effects. Requiring rule changes to be subject to the super-affirmative procedure will give more time for scrutiny and encourage a more measured approach.

Photo of Stuart McDonald Stuart McDonald Shadow SNP Spokesperson (Immigration, Asylum and Border Control)

I will speak to new clauses 40 and 54. I know that Members across the Committee will be enthralled by the prospect of an immigration rules advisory committee. Indeed, if new clause 54 is agreed, to I am sure that straight away, the Minister will be open to considering CVs from people who might serve on that committee.

As the shadow Minister said, the new clauses are all about increasing the level of scrutiny. New clause 40 would require an assessment of the impact of any changes to the immigration rules on modern slavery and on children to be laid before Parliament before the changes could be made. Just as significantly, it would give rise to the possibility of MPs actually being able to debate and amend proposed changes to the immigration rules. New clause 54 would put in place an immigration rules advisory committee.

The kernel of these ideas came from a recent report by British Future, which simply points out, as the shadow Minister has done, that changes to immigration rules have been rapid and incredibly complicated. The Home Office has made more than 5,700 changes since 2010, with the rules doubling in length over the same period. Little by way of explanation is provided to MPs when changes are proposed, and even less of scrutiny or debate. In such situations it is near impossible for most MPs to keep track of changes and to fulfil their role of scrutinising the Government’s work.

Social security offers a comparison with our proposal for an immigration rules advisory committee. Like social security laws, immigration rules are constantly changed by secondary legislation. However, there has been a social security advisory committee since as long ago as 1980. It has an independent remit to scrutinise draft secondary legislation on social security, making advice available to both the Government and Parliament. It has 14 members, who come from a wide range of professional backgrounds, and Ministers are usually required to submit regulations in draft to that committee, which may decide to scrutinise them formally. New clause 54 essentially copies the language of the enabling legislation for that committee and applies it to immigration rules.

While I welcome what the Minister and the previous Home Secretary have said about the need to simplify the immigration rules, we need to improve our procedures for scrutinising changes. Our new clauses offer two reasonable and practical proposals for exactly how that could be done.

Photo of Caroline Nokes Caroline Nokes The Minister for Immigration

I am grateful to the hon. Members for Manchester, Gorton and for Cumbernauld, Kilsyth and Kirkintilloch East for providing a further opportunity to discuss parliamentary scrutiny of immigration rules, which is raised in all three of these proposals. Parliamentary scrutiny is an important issue, and I am aware that Committee members are very interested in it. I will take each new clause in turn, but first I will briefly cover a few background points.

As Committee members will be aware, the detailed provisions on who is entitled to enter and remain in the UK, and on how to apply for such leave, are set out in the immigration rules. The rules are made under the power in section 3 of the Immigration Act 1971. This power to change immigration rules, and the procedure for scrutiny of any changes, are long established. I remind hon. Members that the immigration rules were used, back in 2008, to introduce the points-based system that we currently operate.

I reiterate that none of the changes that we are making through the Bill are intended to affect that power or procedure. We will use that well-established power to set up the future immigration system once we have ended free movement and left the EU. I am in favour of parliamentary scrutiny of changes to the immigration rules, but I am not persuaded that there is any reason to depart from the existing scrutiny mechanism, which has been used to scrutinise all Governments, whether they are making minor or significant changes, for more than 45 years.

In addition, the new clauses are framed as applying only to those who lose their right to freedom of movement under the Bill. However, the Government have been clear that, once free movement ends, EEA nationals will be subject to UK immigration law, including the immigration rules. That means that all subsequent changes to the rules will potentially affect EEA nationals, so the new clauses would alter the parliamentary procedure for changing the immigration rules while purporting to be more limited.

Photo of Stuart McDonald Stuart McDonald Shadow SNP Spokesperson (Immigration, Asylum and Border Control)

The Minister skirted around the fact that she thinks the current levels of scrutiny are absolutely fine, but without really drilling down into why. I wonder how many people in this room have ever looked at draft immigration rules that have been laid before Parliament. If they have done, how many actually understood what the draft changes were supposed to do? On the very few occasions I have managed to look at them, that has been hellishly difficult. Will the Minister explain why that level of scrutiny is appropriate?

Photo of Caroline Nokes Caroline Nokes The Minister for Immigration

The hon. Gentleman may not have noticed that I said right at the beginning that I would give some background before delving into further detail. He need not worry; there is plenty to come.

I am committed to delivering a future immigration system that is fit for purpose and I acknowledge that in order to do that, we must put people first and make it easier for them to navigate our complex system. That is why the Law Commission has begun a consultation on simplifying the immigration rules; I look forward to receiving its recommendations later this year and seeing what more we can do in this area.

I will now address each new clause in turn, starting with new clause 9, which was tabled by the hon. Member for Manchester, Gorton. The new clause is designed to ensure that before any changes are made to immigration rules that affect persons whose free movement rights are ended by part 1 of the Bill, there is a so-called super-affirmative procedure. I fully acknowledge the importance of parliamentary scrutiny, which he seeks to highlight through his new clause, but I cannot accept that the super-affirmative procedure is appropriate here.

Typically, that procedure is used only for deregulatory orders that amend or appeal primary legislation, such as legislative reform orders, public bodies orders, or remedial orders under the Human Rights Act. In those circumstances, it is right that the highest level of scrutiny should be applied, but it is not proportionate to apply the same standard in respect of changes to immigration rules, which obviously are not, and cannot amend, primary legislation. That is because of the effect that the super-affirmative procedure has both on the Government’s ability to make changes to the rules, and on parliamentary time.

Under the current, well-established procedure, the Government can update immigration rules in a responsive way, allowing us to ensure that we have an immigration system that meets the UK’s needs, commands the confidence of the public and reflects the wider economic, social and political context in the UK at any time. Requiring a minimum 60-day standstill period—it would be a minimum, because if, for example, changes were laid in late June, the period would not expire until late October—would severely hamper our ability to make timely and effective changes to the rules.

The impact on parliamentary time would be twofold. Not only would the new clause increase the amount of parliamentary time engaged—there are often multiple changes to immigration rules each year, many of which would be likely to be caught up by this new clause—but there is a broader principle. As I have previously explained, the super-affirmative procedure is typically used only for legislative reform orders and similar instruments. If we were to extend the procedure to immigration rules, it is hard to see a rational basis for stopping the principle applying in many other areas of secondary legislation. Parliament would simply be overwhelmed if that procedure became the new norm. For these reasons, I ask the hon. Gentleman to withdraw his new clause.

I turn to new clause 40. The hon. Member for Cumbernauld, Kilsyth and Kirkintilloch East also raises concerns about scrutiny, and there are two elements to his proposal. The first imposes obligations on the Secretary of State to produce impact assessments relating to modern slavery and children. The second requires the Secretary of State to lay before Parliament drafts of any amendments to the immigration rules that have an impact on persons whose free movement rights are ended by this Bill, and sets out requirements for those drafts to be debated.

Regarding the first element, I reassure the hon. Gentleman that the Government take all impacts of legislative proposals seriously, including those related to vulnerable people, particularly children. As the Committee will be aware following our discussions on amendment 25, the UK takes its responsibilities to safeguard the welfare of all children in the UK very seriously. There are significant safeguards already in place that will apply to any future rule changes.

Further, as set out in the memorandum to the Joint Committee on Human Rights that accompanies this Bill, the Government are committed to ensuring that the convention rights of those affected by any future rule changes are respected. That is an important and integral part of the policy-making process. As we have publicly stated in our existing impact assessment for this Bill,

“future immigration arrangements that will apply to EEA nationals and their family members will be set out in Immigration Rules”,

and will be supported by relevant impact assessments, as is usual practice in the policy-making process.

On the second element, I refer to the points that I made in relation to new clause 9. The hon. Gentleman’s proposals would have a similar effect on the Government’s ability to update the rules in a responsive manner and would have similar potential to set a precedent that would eat up parliamentary time.

Photo of Stuart McDonald Stuart McDonald Shadow SNP Spokesperson (Immigration, Asylum and Border Control) 10:30 am, 5th March 2019

The Minister makes a fair point that it would not be realistic to apply that procedure to every single immigration rule change. One alternative would be to use the nice new committee that we are going to set up using new clause 54 to decide what form of parliamentary procedure would be necessary. For example, if a change to immigration rules was urgent, the committee could say that the Government could go ahead and make it, but if a change was more significant and not time-pressing, there could be a proper and full debate on the Floor of the House.

Photo of Caroline Nokes Caroline Nokes The Minister for Immigration

I am just coming on to the hon. Gentleman’s proposals for a sparkly new committee. New clause 54 would require the Secretary of State to establish an immigration rules advisory committee. I appreciate the concerns behind the new clause. Establishing a new set of immigration rules that will apply to all EEA and Swiss nationals is a big deal, and we need to get it right.

We have made a clear commitment that a wide range of stakeholders, including Parliament, will have an opportunity to contribute their views on the future system before the final policy decisions are made. That will help to ensure that the relevant immigration rules work for the whole United Kingdom. Clearly, Parliament will have the opportunity to scrutinise the rules throughout that process, using the well-established procedures that I have described. I note that we have never before had such an advisory committee for immigration rules. If the new clause were to be added to the Bill, we would not have a similar committee to scrutinise immigration rules that apply to persons who are not covered by the Bill.

As we have said, from 2021, the immigration rules will apply to EU and non-EU migrants alike in a single system that selects people on the basis of skill and talent, as opposed to nationality, so I regard such a committee as unnecessary. I hope that the hon. Member for Cumbernauld, Kilsyth and Kirkintilloch East and the hon. Member for Paisley and Renfrewshire North see that their new clauses are unnecessary, and I invite the hon. Member for Manchester, Gorton to withdraw new clause 9.

Photo of Afzal Khan Afzal Khan Shadow Minister (Home Office) (Immigration)

We will not press new clause 9 to a vote, so I beg to ask leave to withdraw the clause.

Clause, by leave, withdrawn.