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Despite the delay, the UK Immigration Bill is very much alive

On Monday 20 April the Immigration Bill returned to the British parliament for its Second Reading in the House of Commons – offering MPs their first chance to debate the bill. The bill had originally been scheduled to return in April, but was held back as a result of the coronavirus pandemic.

It was very much a case of delayed rather than dead, and late last week the UK Government’s flagship bill was once again back on the agenda. The bill – officially named the Immigration and Social Security Co-ordination (EU Withdrawal) Bill 2020 – outlines how immigration matters will be governed outside of the European Union post-Brexit. One of its most important tenets is that it puts an end to free movement.

On the Government website, Home Secretary Priti Patel said:

“This historic piece of legislation gives the UK full control of our immigration system for the first time in decades and the power to determine who comes to this country…Our new points-based system is firmer, fairer, and simpler. It will attract the people we need to drive our economy forward and lay the foundation for a high wage, high skill, high productivity economy.”

The bill is fairly similar to its previous iteration, which was defeated a number of times in Theresa May’s weakened minority government, but has now passed easily as a result of the Conservatives’ comfortable majority.

The division at the end of the Second Reading resulted in MPs voting 351 to 252 to let the bill proceed to the Committee Stage – a majority of 99.

This was not for lack of opposition in the chamber, with many members being particularly critical of the Government’s decision to push forward with the legislation in the middle of the current pandemic. Similarly, the Government was accused of hypocrisy for clapping for carers on a Thursday and voting to kick them out on a Monday.

But, what exactly are the concerns surrounding the Immigration Bill?

Key Workers

The coronavirus has largely brought the country to a halt over the last few months of lockdown. But while the general public were being repeatedly given the message ‘stay home, save lives’, the Government also released a list of essential workers whose jobs are now under threat due to the bill. Essential workers perform functions deemed vital to ensure public health and safety are maintained during the lockdown and have been expected to continue working throughout the crisis, sometimes at great personal risk to themselves.

The list includes (but is not limited to):

  • All NHS staff; including carers, administrative and cleaning workers, midwives and more.
  • Utility workers; Staff needed to keep oil, gas, electricity, water and sewage running across the nations.
  • Transport; Those keeping air, road and rail travel operational. Allowing for the return of stranded britons into the country and key workers to travel within it.

One of the consistent criticisms of the bill is that a large number of these key workers originate from the European Union and were able to come here by virtue of their right of free movement. Had the minimum salary threshold been in place, over half of these workers wouldn’t have been permitted to make their lives in the UK.

Shadow Home Secretary Nick Thomas Symonds referenced research which found the bill would have kept out 69% of the current EU workforce in the UK; including 66% of those working in the NHS and 99% of those working in transport.

Of particular concern is the effect of the bill on the social care sector, which is particularly reliant on an international workforce and is already struggling to meet demand, with one in eleven posts currently unfulfilled.

The average wage of social care workers is between £16,000 and £20,000, falling well below the Government’s required £25,600 threshold in a points-based system. Approximately a quarter of the social carers are currently employed through precarious zero-hour contracts.

UNISON estimates that an additional 1 million care workers will be needed to meet the UK’s demand by 2025.

With at least one in six healthcare positions currently being filled by foreign nationals, the new immigration system will place undue pressure on an already vulnerable sector.

Caroline Nokes MP, who in the previous Parliament served as Immigration Minister, said:

“What of care workers? Are they to be the Cinderella service, forgotten once again? And what of ancillary staff in our hospitals? We cannot open hospitals if we cannot clean the loos.”

She also argued the Government needed to change the way we talk about these workers.

Ms. Nokes said the term unskilled, used to describe anyone earning less than the minimum wage threshold, was “meaningless and actually really rude to those people who we have been so reliant on”.

Moving forward with this bill, particularly at this time, is viewed by many as an insult to the key workers that are propping up this country in its greatest time of need.

Scrutiny

The Government argues that this bill brings an end to free movement and heralds a new, fairer system. But for many, it is not what is within the bill that is the problem, it is what is noticeably absent.

The bill contains nothing on family reunion, the future of immigration detention, the asylum system, who will be able to apply for (and what kind of) permanent settlement, NHS visas, citizenship and much much more typically expected in an immigration bill.

Instead, the bill gives the Home Office the unchecked ability to amend the bill after it becomes an act of Parliament. The changing of a bill through secondary legislation – known as ‘Henry VIII clauses’ – offers parliament little opportunity to scrutinise, with no ability to amend changes and at best gives them the ability to vote down the statutory instrument 40 days after the change takes effect.

However, the Immigration Bill makes clear that parliament voting down any secondary legislation after the first 40 days:

Will not affect anything which has already been done under those regulations or prevent further regulations from being made.
Bill 104-EN, Para 40

Diane Abbott MP said that while this bill did end freedom of movement, that would have happened anyway once we left the EU, the real effect of this bill was to give the Government “a blank cheque to construct a new immigration system through statutory instrument.”

Ms. Abbott added that:

“Anybody that has had to deal with the immigration system knows that one of the problems is ill-thought regulation piled on top of ill-thought regulation. The idea that the Government can construct a new immigration system without proper parliamentary scrutiny will make anyone who has ever tried to help anybody with an immigration problem fear for the consequences.”

This concern was reflected in the Joint Council for the Welfare of Immigrants (JCWI) briefing on the Second Reading which noted that immigration law is “exceedingly complex and scattered across several Acts of Parliament” adding that “repeated amendments to existing acts and a stream of changes to the Immigration Rules through secondary legislation cause significant problems, with little scrutiny.”.

Citizens’ Rights

The bill does little to allay fears surrounding the future of EU citizens rights in the UK, and even less for the concerns of UK citizens in the EU, with Alberto Costa MP pointing out that the bill leaves UK citizens reliant on reciprocal relationships being made with EU member states in the future.

Many criticised the Government’s decision to push ahead with the NHS surcharge, a fee levied on the majority of UK visa applications, which has been waived temporarily for frontline health staff – though not social workers and many other NHS staff – with six months or less on their visas.

However, despite announcing that the policy would be reviewed, Priti Patel has failed to make concessions on the issue and anyone coming to the UK in the future will be subject to the £400 a year fee (which will increase to £624 in October 2020).

Rusharana Ali, Labour MP for Bethnal Green and Bow said:

“[The surcharge could cost] up to £8,000 for a family of four coming to the U.K. on a five-year visa,”

Adding that this was “an absolute disgrace”.

Christine Jardine MP, Home Affairs Spokesperson for the Liberal Democrats also criticised the surcharge, saying:

“These are migrants who are putting their lives on the line to protect us, who will be crucial to creating economic growth and jobs as we recover from this crisis, and yet who are still expected to pay the surcharge for the NHS they work for, despite the false hope offered by the Home Secretary.”

The Home Secretary also failed to address any of the issues posed by the EU Settlement Scheme, which cements the rights of EU citizens already living and working in the country. Priti Patel has previously confirmed that anyone who failed to apply for settled status before the June 2021 deadline would then be an unlawful resident. Many MP’s highlighted the need to review this policy as a result of the coronavirus and the potential impact it might pose on eligible citizens’ ability to apply before the deadline.

On the issue of people who are granted settled status only being able to prove their right to be in the country through digital means the Shadow Home Secretary said:

“There is such mistrust that the3million and other campaign groups want physical proof of settled status for EU citizens because they simply do not trust the Government’s assurances about everything being digital.”

The Joint Council for the Welfare of Immigrants (JCWI) recommended that:

“The Bill should make automatic provision for all EU citizens and non-EU family members, and other individuals protected by EU law, currently living in the UK to be granted automatic settled status by order of the Home Secretary….The Bill should make it compulsory that all EU citizens and non-EU family members eligible for the EU Settlement Scheme can obtain physical documentation as proof of their settled status.”

Windrush and the Hostile Environment

The Immigration Bill currently gives no indication that it will distance itself from the Hostile Environment policies which ultimately led to the Windrush scandal and the mass deportations of citizens living in this country legally. In fact, the White Paper reaffirms the Government’s commitment to the Hostile Environment.

This led many MPs to berate the Government for not learning the lessons outlined in the independent Windrush Lessons Learned review, laid before Parliament in March of this year.

Rather than repeal these policies, the Immigration Bill extends them to now cover EU citizens, prompting fears that it will lead to similar scandals happening again in the future. While the bill presents fresh opportunities to address the flaws in the immigration system that led to the scandal.

JCWI argue that:

“Government has not taken the chance to fundamentally reform the immigration system which is chaotic, dysfunctional and jeopardises the health and safety of migrant communities. Instead, it is granting itself the power to subject at least three million more people to this very same system with minimal scrutiny”

These concerns were echoed by Stuart McDonald MP, Shadow SNP Spokesperson for Immigration, Asylum and Border Control, who said:

“If they truly have learned the lessons of Windrush, the Government should protect EEA nationals properly. They should provide them with automatic rights, not rights contingent on their applying by a certain date; they should provide all with fully settled status and abandon the precarious pre-settled status; they should provide EEA citizens with a physical document as proof of their rights, and they must scrap the right to rent and other discriminatory hostile environment policies.”

This resulted in Bell Ribeiro-Addy MP concluding:

“Instead of giving reassurances and creating a migration system that is fair, respects human rights and benefits our economy, this Government have opted simply to subject EU nationals to the same failed and inhumane hostile environment policies that they have had for people from outside the EU.”

Going forward

The bill will now proceed to the Committee Stage, where it will be met with amendments and new clauses. Given the widespread concern among MPs surrounding their ability to scrutinise future changes to the Immigration Bill once passed, we can expect a lot of amendments to be put forward at this stage.

Chair of the Home Affairs Select Committee and Labour MP, Yvette Cooper, who abstained in the Second Reading, has already announced that she will be putting forward amendments that she hopes will gain cross party support.

Other opposition MPs are unlikely to be as concerned with congeniality and will see this as a crucial opportunity to change a bill they see as fundamentally wrong.

Sir Keir Starmer, Leader of the Labour party, has said his party will be tabling an amendment to exempt NHS and care workers from the immigration health surcharge.

The Government had initially hoped this bill would be passed and a new immigration system would be in place by the end of the transition period (31 December 2020). It is yet to be seen what impact the coronavirus and the delaying of the Second Reading debate last month will have on this timeline.

What is certain is that, at some point, the Government will be forced to implement policies on all those immigration issues notably absent in this bill. What remains to be seen is just how much say, or even scrutiny, Parliament as a whole will have over this process. Despite calls to ‘take back control’, it seems likely that Parliament will find itself peripheral to some of the biggest changes of UK laws in generations.

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