Illegal working: EEA and Swiss nationals

Part of 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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Photo of Caroline Nokes Caroline Nokes The Minister for Immigration 4:00 pm, 5th March 2019

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.