“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.

Alert me about debates like this

Photo of Caroline Nokes Caroline Nokes The Minister for Immigration 10:15 am, 5th March 2019

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.