Illegal working: EEA and Swiss nationals

Immigration and Social Security Co-ordination (EU Withdrawal) Bill – in a Public Bill Committee at 4:00 pm on 5th March 2019.

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“Section 24B of the Immigration Act 1971 does not apply to any work undertaken by an EEA or Swiss national.” —

This new clause would limit the offence of illegal working so that it did not apply to EEA or Swiss nationals.

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Photo of Graham Stringer Graham Stringer Labour, Blackley and Broughton

With this it will be convenient to consider new clause 53—Illegal working: people who qualify for settled or pre-settled status—

“Section 24B of the Immigration Act 1971 does not apply to any work undertaken by a person who qualifies for settled or pre-settled status under Appendix EU to the Immigration Rules, but fails to apply for such status by the time of any deadline put in place in relation to such applications.”

This new clause would limit the offence of illegal working so that it does not apply to EEA or Swiss nationals who qualified for settled status, but failed to apply in time.

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

These new clauses relate to the offence of illegal working, which we heard about in the evidence to the Committee. The substance of that evidence was essentially that the offence of illegal working is driving people into exploitative employment relationships. Obviously, that is complete anathema to the Government’s stated anti-slavery objectives.

We heard from Focus on Labour Exploitation, whose research has clearly shown that undocumented people are unlikely to come forward to labour inspectorates about abuse if they fear immigration repercussions, which has a triple effect. First, they are not identified as victims or supported. Secondly, abusive employers can operate with relative impunity because the immigration regime effectively hands them exploitable workers. Thirdly, that serves to undercut other workers, who have legal rights, thereby dragging the whole labour market down.

I am loth to see the offence extended to EEA and Swiss nationals. This offence is a year or two old now; has the Home Office done any research on the impact of its creation? What have been the implications on the Government’s efforts to tackle modern slavery? At the very least, we need to be reassured that the Home Office is alive to these concerns and will take them seriously. In the absence of such reassurance, we cannot just head off and extend the scope of those offences further.

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

We support the new clauses. As has been set out by the TUC and Focus on Labour Exploitation, it is essential that migrants are able to claim their rights at work. That means not being arrested for criminal offences when attempting to report abusive employers. Our labour market enforcement capacity is one of the weakest in Europe. We need to set high standards for wages and workers’ conditions, significantly improve our inspection capacity, and remove the offence of illegal working. This offence makes it less likely that people will come forward to the UK national referral for trafficking and modern slavery.

We know that many trafficking victims are already in immigration detention. In her evidence to us, Bella Sankey from Detention Action provided a powerful example of a Chinese woman who was a victim of trafficking. She was picked up at a brothel after a tip-off, but instead of being treated as a victim of modern-day slavery and trafficking, she was taken to a detention centre and held for six months. Clearly, many things went wrong at many stages of that woman’s journey through the immigration system, but removing the offence of illegal working would at least help to remove one barrier to her getting the help she needs.

Photo of Caroline Nokes Caroline Nokes The Minister for Immigration

I am grateful to hon. Members for tabling these amendments. I also welcome the opportunity to explain how the offence of illegal working will be applied to EEA and Swiss nationals after we have left the EU, and how our approach to the EU settlement scheme will minimise any risk of those nationals being subject to the offence of illegal working post-EU exit. The Government have made clear our commitment to protecting the rights of EEA and Swiss nationals who are resident in the UK before exit. I recognise the concerns and the intention behind both new clauses, but they are unnecessary and discriminatory. They are also incompatible with our commitment in the White Paper to establishing a single, skills-based immigration system for all migrants coming to live and work in the UK.

As I said, the Government established the EU settlement scheme to ensure that EEA and Swiss nationals living in the UK can obtain the status under UK law to secure their continued ability to live lawfully in the UK. I am confident that, in both deal and no-deal scenarios, the respective implementation or transition periods will give EEA nationals living here ample time to secure their status.

With those measures in place, I see no reason why EEA nationals would need to work in the UK illegally in the future system. However, it is only through the EU settlement scheme that EEA nationals will be able to secure the required immigration status in UK law to prevent them from falling foul of the offence of illegal working in the new immigration system. That is why we must do all that we can to ensure that EEA nationals are able to evidence their entitlement to live and work in the UK. The answer is not to exempt individuals from immigration offences and controls but to ensure that they can obtain the necessary status.

As hon. Members will know from my previous responses, in the event of a deal scenario, EEA nationals will continue to have, under the EU withdrawal agreement, the right to work in the UK until the future system is introduced in 2021. At that point, the offence of illegal working will apply equally to those subject to immigration control, including EEA and non-EEA nationals. In a no-deal situation, EEA nationals who arrived in the UK before 29 March 2019 would have until the end of December 2020 to apply to the EU settlement scheme and would continue to be able to work in the UK, as now, during that transitional period.

We made a clear commitment in the draft withdrawal agreement to treat in a proportionate way members of the citizens’ rights cohort who fail to apply to the EU settlement scheme. After that implementation period, our approach to individuals who have not applied to the scheme but who are eligible to do so will be to provide every opportunity and support for them to make an application. Our focus in such cases will be on encouraging compliance, rather than enforcement, to facilitate individuals obtaining the required status to prevent them from being subject to the offence of illegal working.

Furthermore, the offence of illegal working is not a strict liability offence. It requires an individual to know, or have reasonable cause to believe, that they do not have the necessary permission to work. The offence would not be committed by someone who is working illegally but does not know or does not have reasonable cause to believe that they lack permission to work. This enables us to take a proportionate approach.

The hon. Member for Manchester, Gorton raised the case of the individual highlighted to us during the evidence sessions. It is important to emphasise that victims of modern slavery are not the target of this offence. They can rely on the statutory defence in section 45 of the Modern Slavery Act 2015. The hon. Member for Cumbernauld, Kilsyth and Kirkintilloch East queried whether any specific evaluation had been undertaken. There has not been any to date, but we will certainly consider that going forward.

We are moving to a new, single immigration system, and EEA nationals who do not fall within the citizens’ rights cohort will be expected to meet the rules under that system like everyone else. Hon. Members must be wary of putting on to the statute book provisions that discriminate directly on the basis of nationality, which is directly contradictory to what we are trying to achieve. I hope that, in the light of those points, the hon. Member for Cumbernauld, Kilsyth and Kirkintilloch East will feel able to withdraw the motion.

Photo of Stuart McDonald Stuart McDonald Shadow SNP Spokesperson (Immigration, Asylum and Border Control) 4:15 pm, 5th March 2019

I thank the Minister for her answer. There were some helpful pieces of information in there. I again emphasise that the discrimination argument is not really an argument against the principle behind the new clause. If the new clause was accepted, we would also push for the Government to go further and remove the offence for all nationalities.

I particularly note the Minister’s candid admission that no evaluation of the impact of the offence has been made to date. I hope that the Home Office undertakes such an evaluation soon. The Minister can expect to hear from me very shortly if I do not hear any evidence that it has done that. In the meantime, I beg to ask leave to withdraw the motion.

Clause, by leave, withdrawn.