Q I will start with a question to Mr Berry. You will be aware that the Law Commission published its report on simplifying the immigration rules. One of the places we want to go to with the changes in the Bill is having a single set of migration rules. What opportunities do you see that presenting, and what is your view so far on the response that has gone out in terms of simplifying and where you see that further work could be done?
I do not think that simplifying the immigration rules has much impact on inbound migration per se. It is obviously a good thing from the point of view of good rule making and from a user perspective. The more pressing question is how you integrate the intention to create free trade agreements with the EU and with other countries, and the migration routes there, with the Home Office proposals from January 2020.
We have the Home Office paper on the future of immigration, and then we have a parallel universe where there are free trade agreements with other migration routes and mobility rates contained in them—not just with the EU, but the proposed ones with Australia, New Zealand and the United States, drawing on precedents from existing EU free trade agreements with Korea, Japan and Canada. There appears to be no joined-up thinking in Government about what impact those mobility routes have on the Home Office proposals of January 2020. It is very important and necessary and urgent to see how that joined-up economic migration regime is going to work, and I have yet to see a Government paper on that.
Q Perhaps slightly later we can talk about international agreement. Obviously, the other aspect of this is the social security co-ordination clauses. There are negotiations going on, and there is a range of potential outcomes. Do you have any particular views about that clause?
On clause 5, you already have powers to amend ineffective retained EU law under section 8 of the European Union (Withdrawal) Act 2018, so you can make regulations under Henry VIII powers to deal with any deficiencies in retained EU law and social security. You have given yourself additional powers under section 13 of the European Union (Withdrawal Agreement) Act 2020 to make regulations for social security co-ordination, so you already have two sets of Henry VIII powers. You are currently negotiating a third social security treaty, annexed to the draft free trade agreement. If that is agreed with the EU, you will have another Act of Parliament that you will need to implement that. Why do you need a fourth set in clause 5? If there is anything left in social security law that you have not covered under the array of Henry VIII powers that you are arming yourselves with, primary legislation and the scrutiny of MPs in this room at the highest level is required.
Q And do you have any view on the fact that clause 5 will be stretched into devolved competence, subject to legislative consent motions? Is that part of your consideration at all?
Q Bella Sankey, perhaps I can come to you first. Will you outline for us what your hopes for change are, in terms of detention, through this piece of legislation? Will you also comment on David Goodhart’s remarks that those who, for one reason or another, have not applied for pre-settled or settled status through the EU settlement scheme may find themselves in a very precarious immigration position, and could find themselves in detention? What are the implications for those people, and what might need to change?
Thanks very much, Ms Lynch. For some time now, Detention Action has been working with a coalition of civil society organisations, including the Bar Council, the Law Society, the Equality and Human Rights Commission, Stonewall and others, and with MPs across the divide—Conservative, Democratic Unionist Party, Labour, SNP and Liberal Democrat MPs—to build a consensus around the idea that there needs to be a strict statutory time limit on immigration detention.
Immigration detention is a peculiarity of our public policy, in that there is no time limit. Unlike the criminal justice system or the mental health system, you can currently be detained indefinitely for months or years, and redetained indefinitely for months or years, without any statutory time limit in place if you are subject to immigration control.
It is a sweeping power that was introduced in 1971, when a series of immigration Acts acted to limit immigration from Commonwealth countries with the explicit intention of trying to reduce black and brown migration to the UK. The system was set up then, and has not been properly amended or looked at by Parliament. From the 1970s right up until the 1990s, a handful of people were detained, but it is now the case that thousands and thousands of people are detained each year. At present, as we sit here, 12 people in immigration detention have been there for more than one year.
The system is arbitrary and cruel. There is a crisis of self-harm in the system. Every day, my caseworkers speak to people who have suicidal ideation as a result of the indefinite nature of their detention. That is what everyone who has experienced the system will tell you: it is the indefinite nature that creates psychological torture and uncertainty. That means that people begin to lose the will to go on and live. We are seeking to implement a time limit through this Bill.
Q Further to that, if people have not applied to the EU settlement scheme by the time it closes at the end of June next year, people will potentially be a situation where they could be in detention centre.
Absolutely, and even if there is a very small error rate and there is perfect communication in that system, which I think we can all accept given the scale of the challenge is going to be very unlikely, those people will be subject to indefinite detention under our system. The link with the Bill is that the Bill does not put in place any time limit at all for EEA nationals or anyone else.
Q Thank you very much.
Adrian Berry, you have already outlined some of your concerns about the sweeping Henry VIII powers in the Bill. Would it be fair to say that not only does that restrict the ability of Parliament to scrutinise further developments in immigration policy and immigration law, but that it provides a great degree of uncertainty for immigration lawyers, who are working with people in the system about what those future policies and approaches might look like?
Yes, that would be fair. What has happened—to give you an example—is that EU law has been domesticated and retained under the European Union (Withdrawal) Act 2018, and then there are clauses in the Bill that say that the law continues to apply, except in so far as it is inconsistent with immigration functions or immigration Acts. So you end up with law, which is good law in this country, but it may not apply if someone judges it to be inconsistent.
We look to the law to know what it means. We look for legal certainty and for good administration. In clause 5(5), and in paragraph 4(1) and 4(2) of schedule 1, you find the same legislative drafting technique used—retained EU law applies except in so far it is inconsistent with—and then a general statement—immigration Acts or an immigration function or regulations made. How is the ordinary person, never mind the legislator, to know whether the law is good or not in a particular area if you draft like that? You need to make better laws. Make it certain, and put on the face of the Bill those things that you think are going to be disapplied because they are inconsistent with immigration provisions. There must be a laundry list in the Home Office of these provisions and it would be better if they are expressed in the schedule to the Bill.
Yes, because service users—us, the citizens—need to know what the law means. We are entitled to understand that. People who are affected by it need to know what it is. It is not good rule making to do it like this.
Q Mr Berry, we have just heard some discussion about the possibility of citizens eligible for the settled status scheme not applying for it. For what reasons will people miss the deadline? Can you give us a flavour of why this might be a significant problem?
They might be leading disordered lives. They might have things happening in their lives that concentrate their minds elsewhere—family difficulties, work difficulties. They might be affected by coronavirus. They might have mental health impairments. They might be long-term sick. They might be old. They might be demented. There is a whole host of reasons that are part of the ordinary warp and weft of life why somebody might miss a deadline. Not everybody has my focus on the interests of the European Union (Withdrawal) Act and its implementing provisions. Ordinary people do not. There needs to be a benevolent regime that allows them to make late applications.
Q How would a benevolent regime work? Do you have any ideas about how that could be done or how best it could be done?
Q Okay. You spoke about the Henry VIII powers in relation to social security. You have touched on them a little bit in terms of immigration. Is this just par for the course—a Government helping themselves to sweeping immigration powers—not that that makes it any better, or is this a pretty extreme example?
The Government set their own Executive policy for making immigration rules anyway; the Bill does not change that. What the Bill does do is take away your powers to make primary legislation and give them to Ministers by way of regulations. If you want to reverse the way in which powers are distributed in the constitution, that is a matter for you, but personally speaking I think it is a bad idea.
Q As we heard earlier, immigration rules have been revised thousands of times in the last 10 years. The defence of how we do it appears to be that it allows the Government to respond quickly. Is that in any way an adequate defence? How can we marry up the need for scrutiny with the need to act quickly at times?
The Bill does not change the situation that immigration rules are laid before Parliament under section 3 of the Immigration Act 1971. That continues anyway. What the Bill is doing is something discrete and different. It gives Ministers the power to amend primary legislation and retained EU law, which are two separate things. At the moment, the Home Secretary lays immigration rules before Parliament, and they deal with executive policy, not with laws. So, although they are called immigration rules, strictly speaking they are not legislation. The difference here is that this is a paragraph on legislation.
Q I will just pick up on what you said a little earlier about mobility routes in some of the free trade negotiations that are going on. Can you just expand a little on what you understand is being negotiated in some of those agreements and on what those mobility arrangements might look like?
The Home Office position and the UK Government position is to draw on precedent-based treaties that the EU has with Canada, Japan and South Korea, and those treaties have mobility routes that reflect General Agreement on Trade in Services mode 4 commitments for persons who are coming here as short-term business visitors, key personnel, key senior staff and specialists, and also routes in free trade agreements for independent professionals, contractual suppliers and so on. All of those routes would be for 12 to 24 months; none of them would lead to settlement or permanent residence for short-term business visitors.
The UK’s ambition is that it will attract highly skilled people in that way, but only on a temporary basis, and if you are creating an economic migration regime in the Home Office paper, as was trailed in January, and you make no mention of that, it is some omission in the overall scheme, because you need to understand how it works.
The second thing that you really need to clearly understand is that the UK is like a little moon next to the planet Earth of the EU on this. There is a 450-million person territory next door to us that is setting its own economic migration rules and it is competing with us, and if you do not bear in mind what will happen in terms of economic migration in the EU—that you can come in for service provision or for work and have a route to settlement—and you are still creating this inbound regime into the UK, then you are not thinking about the impact of living next door to a much larger jurisdiction, and it is critical in the national interest that you do so.
Q Ms Sankey, may I turn to you? You have spoken already about how rules around detention will apply to people impacted by the Bill. May I ask you about deportation powers, which became topical a couple of months back, with flights to Jamaica in particular being a source of controversy? How will the Bill impact deportation powers in relation to EU nationals, and what would you like to see changed about it?
Thanks very much for the question. The Bill will mean that, for the first time, EU citizens will have the deportation laws that currently apply to non-EU citizens applied to them. Those rules are blunt, they are harsh and they are dehumanising. In 2007, the last Labour Government brought in a power of mandatory deportation for anybody who receives a sentence of 12 months or longer. In 2014, when Theresa May was Home Secretary, the coalition Government introduced additional legislation that meant that if somebody was seeking to resist deportation on the grounds that they had a loving parental relationship with a child in the UK, or a child who was a British citizen, they would only be able to do so if the effect of their deportation would have an unduly harsh impact on that child.
The Home Office defines “unduly harsh” as “excessively cruel”, so at present it is insufficient, if you are a non-EEA national, to show that the impact on your child would be cruel; you need to show excessive cruelty. The effect of that provision means that child cruelty is legislated into our primary legislation. It means that the courts, when they are making these decisions, are forced to allow a deportation to go ahead even though they may find on the evidence that serious psychological harm will be done to a child. The courts are clearly very uncomfortable about that and have said explicitly, in terms, that immigration law can no longer be reconciled with family law principles, because family law principles require the best interests of a child to be taken into account in all public decision making.
That is the situation as it stands. The impact of these laws over the past decade or more has been to cause untold trauma and pain, particularly to Britain’s black community, who are disproportionately impacted because, as is well-known, they are a community that is over-represented in the criminal justice system and subject to social and economic deprivation.
The issue from earlier this year that you mention was, of course, a charter flight to Jamaica. The majority of the people booked on to that flight by the Home Office had drugs convictions—a lot of them when they were teenagers or a long time ago. The law as it stands did not allow any of that to be taken into account, because of the automatic and mandatory power to seek deportation of those individuals.
A number of our clients were victims of modern-day slavery, grooming and trafficking, but again, they found themselves in detention without an opportunity to raise the fact that they had been subjected to that, and of course the large majority of them had been in the UK since they were two or three years old and had been in primary school here and secondary school here. I see the Minister does not seem to be agreeing with this account.
But it is all there on the public record. As I say, the law as it stands has applied in a blunt and discriminatory way against the black community, and this Bill now proposes to extend those harsh provisions to all EU citizens.
I spoke only recently to a woman who was actually removed to Poland on
Q We have heard already that we need better law, and obviously this will be an opportunity to have better law. It is interesting to note that when the Home Office director general of immigration enforcement left his post and went public in January, he made the point that our immigration system largely fails to deal with those who are here illegally, and he pointed out that over 75% of judicial review applications made to the administrative court were for asylum and immigration matters. According to the most recent figures that he could get, only 54 of the 8,649 applications actually succeeded.
If, at the moment, the law is being used to actually frustrate the legal process of removing people who have no right to be in the UK, do we need to improve the law to make that work better? I am sure you would agree that it is not unreasonable to expect people who have committed serious criminal offences and have no right to be in the UK to be removed under the law of the land.
I believe in the rule of law. I think it is a good thing if we have judicial scrutiny of executive decisions, including deportation, removal and detention decisions, in order to ensure that they are lawful and consistent with the values that we have embedded in our Human Rights Act provisions and in our civil liberties provisions and statutes.
To answer your question directly, a lot of judicial reviews are settled on issuing, because the Home Office realises that it has made a mistake and it compromises on them. The second stage at which they are settled is when permission to apply for judicial review is granted and the Home Office realises that it has made a mistake and it compromises; it settles and pays the costs, on a polluter-pays principle. Very few judicial reviews go the distance to a substantive hearing, so you have to be very, very careful in measuring the data between the number of claims lodged and the number of claims that are determined at a final hearing.
What we do know is that judges routinely grant injunctions against removals, on the basis that they see a point in holding the ring in order to determine the true and lawful position in the situation. Whatever someone has done, all their interests—including the public policy interest in their expulsion and, on occasion, the public policy interest in their retention—are to be weighed up before a lawful decision is made. Judicial review is one check on it, in the absence of a proper full range of appeals, that allows that to take place.
The thing that is striking about this Bill is that it is being brought forward following two previous Immigration Bills, in 2014 and 2016, that implemented the hostile environment. Since those Bills came on to the statute book, of course, the Windrush scandal has come to national attention, yet in spite of that, every single aspect of the hostile environment remains in place, and there is nothing in this Bill to address that. Worse still, the Bill now extends the hostile environment to EU citizens. The hostile environment has been found in terms, in the Court of Appeal earlier this year, to lead directly to racial discrimination. Yet, as I say, there is no effort in the Bill to deal with the fact that, as things stand, we have imported immigration control into the country—employers, bank managers and landlords are all expected to be immigration officers—and we have made this country a much less pleasant place to live if you do not look British, if you do not sound British, or if you do not have a British name.
It is quite shocking that, following the Windrush scandal, this new piece of immigration legislation has been brought to Parliament without any attempt to deal with the very clear problems in the existing immigration regime.
Q Do you not agree, though, that the current EU regime that we operate in is actually very discriminatory against black people, given that the majority of people in the European Union are white people? We are going to extend the same rights to people from African countries, India, Pakistan and the developing world. At the moment, do you not agree that it is a very discriminatory system, giving rights to people from EU countries, or EEA countries, that are not extended in the same way to those from other countries, where predominantly people may have different coloured skin?
I welcome the sentiment to use this moment to level up protections for people in the UK regardless of their skin colour. Unfortunately, though, what the Bill does is level down protections. As things stand, EU citizens have protections against deportation that have not been transferred into the Bill, so will no longer apply to EU citizens and will not apply to non-EEA nationals—predominantly black and brown people.
Similarly in our immigration detention system, there is nothing in the Bill to provide the kind of safeguards that EU citizens currently have against detention. We know that the system discriminates. If you are Australian and you are detained, 90% of Australians will be released before 28 days. If you are Jamaican and you are detained, only 40% of Jamaicans will be released before 28 days. You are right: there is direct racial discrimination hardwired into our immigration system at present, but nothing in the Bill actually deals with that. It only downgrades the rights of non-British citizens in this country.
I wanted to ask about the advice and assistance that is available to people who want to apply Q under the EU settled status scheme, and in particular the fact that there is not a right of appeal in the Bill. Does that offend against the rules of natural justice when decisions are taken? Also, would the two witnesses like to comment on the recommendation from the Home Affairs Committee to have a declaratory system for granting settled status? Might that help to head off some of the problems that we have been identifying this afternoon?
On the right of appeal, you will be aware that in section 11 of the European Union (Withdrawal Agreement) Act 2020 there was a provision for making a right of appeal by way of statutory instrument, and that that was exercised in the Immigration (Citizens’ Rights Appeals) (EU Exit) Regulations 2020.
Sorry. There is a power in the European Union (Withdrawal Agreement) Act 2020 to create a right of appeal for those who are refused under the settlement scheme. A statutory instrument was laid and came into force on
Briefly on a declaratory scheme, given how many people have been registered under the EU settlement scheme, there is a need to encourage maximum compliance and to make sure that deadlines are extended, if necessary, beyond June 2020 next year. There may come a point when the full merits of a declaratory scheme, which I would have supported at the outset, become more manifest to deal with the remaining cases, but at the moment we need to ensure compliance and a full subscription take-up of the scheme.
It is deeply problematic that there is not a declaratory scheme for EU citizens. Again, the echoes of Windrush should be considered. Wendy Williams, in her report published last month, found that the Windrush scandal was entirely “foreseeable and avoidable”.
At the time that the Immigration Act 2014 was passed, I worked for Liberty, the National Council for Civil Liberties, and we warned the Home Office that the Windrush scandal, and other scandals, would happen because of the hostile environment that was being introduced. I say again in 2020 that there will be a similar scandal, this time for EU citizens, because the very same problems that the Windrush generation encountered will be real and evident for EU citizens who do not manage to apply for the EU settled status scheme in time. Of course, they will often be people who are more vulnerable and in harder-to-reach groups, and will be made more marginalised by the fact that they have become essentially undocumented.
One of the other big problems with the Bill when thinking about redress and natural justice is that, at present, legal aid is not available in immigration cases. That was one of the many reasons why, during the Windrush scandal, people found themselves being detained and wrongfully deported. There was no access to lawyers for that generation that came to the UK post war to help us to rebuild. Similarly, there will be no access to lawyers for EU citizens who are seeking to regularise their status after the applications close. That is why one of the other amendments that Detention Action is proposing to the Bill is to bring civil legal aid back within scope, at the very least for article 8 cases where people’s private and family lives and human rights are at stake.
Mr Berry, I sense your displeasure with clause 4, but earlier, in answer to Mr McDonald’s question, the FSB said that it was actually very happy with it, because it allows a degree of flexibility and allows the Government to respond to workforce demands and so on. Do you not think that business has a point, that flexibility should be built into the system?Q
The flexibility that you need to make individual rules about economic migration you get from the immigration rules, which are of course not the subject of this Bill. If you want to change part 6A, which contains the current points-based system for economic migration, the Secretary of State can lay new or amended immigration rules, with the assistance of the Immigration Minister.
Clause 4 here is designed to deal with primary legislation and retained EU law, not with the immigration rules, so if the FSB thinks the clause is changing the economic immigration rules system, it is wrong in that respect. It is changing primary legislation about the administration of immigration control, not the specific rules for economic migration, which are made under the immigration rules.
Q May I return, Mr Berry, to what you were saying earlier about the draft free trade agreement that the UK published in February and the associated social security co-ordination arrangements? What exactly is it that the UK is proposing to cover in those arrangements, which presumably would potentially be introduced using the provisions of clause 5 in this Bill? What is not being covered?
The draft social security treaty is attached to the draft free trade agreement, which is available on the Government website now, from last month. It includes short-term healthcare coverage for people who are travelling for short-term purposes, such as tourism and temporary work contracts, to receive what we call the EHIC card scheme. It also includes a system for old age pensions to be paid overseas in other EU member states and uprated to be equivalent to home pension rates here.
What is missing, and what we are losing, is disability pensions being paid overseas, and healthcare, which was attached to old age pensions and to disability pensions under the EU co-ordination regime, will no longer be attached for pensioners who retire in Spain, Cyprus or wherever, from 2021 onwards. At the moment, it is a bonus ball. If you get a pension paid overseas, healthcare coverage is included under the EU co-ordination regime and the bill is paid by the UK Treasury. In the new proposed UK treaty, that is going; it is just your old age pension uprating.
The UK has split the interrelationship between healthcare and social security and pensions, which is contained in the EU co-ordination regime, into two silos: social security and pensions in one silo, in this Bill, and healthcare arrangements under the Healthcare (European Economic Area and Switzerland Arrangements) Act 2019. There is no draft healthcare treaty attached to the UK’s draft free trade agreement at the moment, and no healthcare provisions included in this draft social security treaty. Both of those are missing.
Additionally missing is the S2 scheme, which we have at the moment, for people to make arrangements, prior to travel, to receive hard-to-find treatment in EU member states, if they cannot get NHS treatment in the UK. There is no S2 scheme for British citizens to go and receive that form of healthcare—healthcare that is unavailable here—and to get it in EU states. The cross-border health directive, which allows people to have their prescriptions and pick them up in EU states, will effectively be repealed. There is no provision for that in the draft social security treaty.
Who loses out? The disabled. They will not be able to get private health insurance to travel on holiday. It will have a direct and differential impact on people with physical and mental impairments. It will also have an impact on anybody who thinks they are going to be retiring to Spain, Italy or France. They will not have healthcare insurance there, even if they get their pension uprated. It is a big loss.
It is, but it would be in an international treaty arrangement. The problem is that it is certainly differential treatment. It impacts on them directly because something that they would have had, which has been protected under EU law and under the withdrawal agreement, will not be available to them. New movers—disabled people who move for the first time in 2021, at the end of the transition period—will not have that. Travel for them will become very problematic.
It is interesting that even for the new EHIC card scheme in the draft treaty, the really expensive stuff is now carved out. In the new EHIC card arrangement, which is in the draft treaty, if you want chemotherapy, dialysis or oxygen therapy, you have to get prior authorisation from the UK Government now, even if you are going on holiday. You do not have to do that at present. It is clearly a rationing device that will further impact on British citizens with long-term health needs who, frankly, deserve a holiday. They will find it very difficult to have that because they will not be able to have the necessary insurance and comfort that they need, in order to travel in safety.
Q May I ask you about schedule 1, paragraph 6, which appears to be quite a wide provision that allows Ministers to make changes to what can be covered by free movement arrangements? It appears to be widely drawn and, as I read it, could allow for changes, for example in relation to the treatment of asylum seekers or people who have been trafficked to the UK. Is that your reading of it? In any discussion that you have had, do you think that would have been the Government’s intention in the Bill?
It is interesting. In part 1 of schedule 1 they repeal some retained EU law, which is to be expected in the provisions on the workers regulation. That is a political choice. What is more unclear is that other retained bits of EU law, which relate to victims of trafficking or victims’ rights where people are victims of crime, remain on our statute book, but may be disapplied by this provision, if they are judged to be inconsistent with the provisions that are to be made in respect of immigration. We do not know whether they are or they are not. We do not even know the exhaustive list of these parts of retained EU law that help vulnerable people, such as victims of trafficking, because they are not spelled out on the face of the Bill.
At the very least, there needs to be a schedule spelling out the parts of retained EU law that may be affected by paragraph 6. Better than that, if you are going to repeal these parts of retained EU law, because you think they are inconsistent with the Immigration Acts, say so and put it in primary legislation, if that is your choice. Make a better law.