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“Super-affirmative procedures for immigration rules

Part of 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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Photo of Afzal Khan Afzal Khan Shadow Minister (Home Office) (Immigration) 10:15 am, 5th March 2019

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.