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House of Commons Hansard
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Draft Immigration, Nationality and Asylum (EU Exit) Regulations 2019
18 March 2019

The Committee consisted of the following Members:

Chair: David Hanson

† Antoniazzi, Tonia (Gower) (Lab)

† Clarke, Mr Simon (Middlesbrough South and East Cleveland) (Con)

† Dakin, Nic (Scunthorpe) (Lab)

† Fabricant, Michael (Lichfield) (Con)

† Gethins, Stephen (North East Fife) (SNP)

† Hayes, Sir John (South Holland and The Deepings) (Con)

† Huq, Dr Rupa (Ealing Central and Acton) (Lab)

† Khan, Afzal (Manchester, Gorton) (Lab)

† Lopez, Julia (Hornchurch and Upminster) (Con)

† Maclean, Rachel (Redditch) (Con)

† Maynard, Paul (Lord Commissioner of Her Majesty's Treasury)

† Metcalfe, Stephen (South Basildon and East Thurrock) (Con)

† Nokes, Caroline (Minister for Immigration)

† Smith, Eleanor (Wolverhampton South West) (Lab)

† Spellar, John (Warley) (Lab)

† Timms, Stephen (East Ham) (Lab)

† Tomlinson, Michael (Mid Dorset and North Poole) (Con)

Kenneth Fox, Committee Clerk

† attended the Committee

Twenty-Fourth Delegated Legislation Committee

Monday 18 March 2019

[David Hanson in the Chair]

Draft Immigration, Nationality and Asylum (EU Exit) Regulations 2019

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I beg to move,

That the Committee has considered the draft Immigration, Nationality and Asylum (EU Exit) Regulations 2019.

Delivering a deal with the EU remains the Government’s priority. We are, nevertheless, preparing for a range of scenarios. As the Prime Minister has pointed out:

“The legal default in UK and EU law remains that the UK will leave the EU without a deal”

on 29 March

“unless something else is agreed.”—[Official Report, 13 March 2019; Vol. 656, c. 464.]

UK domestic law has given effect to the obligations in the fields of immigration, nationality and asylum that arise from our membership of the European Union. The UK has also been subject to directly effective EU law. When we leave the EU, aspects of our legislation and retained direct EU law will fail to operate effectively; if they are not modified or revoked by this instrument, they will contain deficiencies.

The draft regulations will make changes to a range of domestic primary and secondary legislation to prevent, remedy or mitigate deficiencies in law that arise from the UK’s exit from the EU. They will ensure that if the UK leaves the EU without a deal, our statute book will operate on exit day until new legislation on these issues is commenced.

First, the draft regulations will make the technical changes required to correct wording in our legislation that describes the UK in terms of our membership of the European Union or the European economic area. Those changes will not alter the legislation’s effect. Similarly, the draft regulations will make technical amendments to domestic legislation that refer to EU rights retained by the European Union (Withdrawal) Act 2018.

Secondly, the draft regulations will revoke relevant retained EU legislation relating to immigration. They will also revoke a number of instruments that give effect to the UK’s membership of the EU asylum acquis and that will be inoperable on exit. By leaving the EU, the UK will also leave the asylum acquis. The draft regulations will therefore revoke the Dublin regulation and the Eurodac regulation.

Thirdly, the draft regulations will make a number of transitional and saving provisions in relation to the measures that they will amend, so that the amendments in question do not have an inappropriate effect in respect of decisions or other actions taken before their commencement.

Finally, the draft regulations will apply the UK rules for criminality to EEA, Swiss and Turkish nationals. This amendment applies only to their conduct after exit. Our intention, which the Home Secretary has already announced, is to apply the same rules to new arrivals, irrespective of which country they come from.

The Government believe that we must plan for every eventuality, including a no-deal scenario. In introducing the draft regulations, we are taking practical steps to ensure that the UK statute book will operate effectively on exit in the event that the UK leaves the EU without a deal. The draft regulations will prevent deficiencies in immigration and asylum law that arise from the UK’s leaving the EU, and will ensure continuity until the Immigration and Social Security Co-ordination (EU Withdrawal) Bill allows the Government to introduce the future borders and immigration system. I commend the regulations to the Committee.

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It is a pleasure to serve under your chairmanship, Mr Hanson.

Labour opposes the draft regulations on four grounds. First, they will make changes to 21 separate pieces of primary legislation—something that should rightly be done through primary legislation. The Immigration and Social Security Co-ordination (EU Withdrawal) Bill, which has just come out of Committee, was surely the perfect vehicle for any necessary changes to primary legislation before exit day. Putting those changes into a Bill would have allowed more time for hon. Members to scrutinise exactly what they will mean for each of the Acts affected, and to table amendments if necessary. We accept that many of the changes are technical, but they could easily have been spelled out in the Bill and nodded through in Committee.

Our second reason for opposing the draft regulations is that on the Bill Committee we spent a lot of time talking about how chaotic and disorganised the current immigration rules are. They are almost impossible for immigration lawyers, judges and Home Office officials to understand, let alone the average person applying for a visa without the help of legal aid. The point of supplementary scrutiny is not just to criticise the Government, but to consider and improve what they are doing. More chances for scrutiny would avoid contradictory rules and bad laws.

Thirdly, the draft instrument puts the cart before the horse. We do not yet know whether the immigration Bill will become law, as it faces significant hurdles before Report in the Commons and has not yet been through the Lords. This statutory instrument makes changes for a post-Brexit immigration landscape that is not yet assured.

Finally, the statutory instrument revokes the Dublin III regulation, which determines which EU member state is responsible for returning an asylum claim.

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I am pleased that my hon. Friend raises the question of the Dublin agreement. Is it his understanding, as it is mine, that a significant number of families who can currently be reunited thanks to that regulation could no longer be if there were no deal and we were to exit on the basis of the SI before the Committee?

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I wholeheartedly agree with my right hon. Friend. We accept that leaving the EU will mean leaving Dublin III, but we would have liked continued co-operation on family reunion even in a no-deal scenario.

Dublin III has been a crucial mechanism for reuniting refugee families. In 2018, over 1,000 people were reunited with family members in the UK under that regulation, including over 150 children. If the UK leaves the EU with a deal, Dublin III will remain in place until the end of the transition period, during which time the Government are committed to negotiating reciprocal arrangements on separated children. That should be expanded to include all the family reunion cases allowed under Dublin III.

If we leave without a deal, we will immediately cease to be part of Dublin III, and many refugees will be unable to be reunited with their families from 29 March. UK immigration rules contain provisions for the reunion of refugee families, but evidential requirements are higher than under the Dublin III regulation, in which the definition of “family member” is broader. We support calls for the UK’s immigration rules to be more generous in family reunion cases, so that children can sponsor family members and the definition of “family” is broader.

We welcome the Government’s inclusion of a savings provision in the draft regulations to allow for take-charge requests made before exit day to continue to be considered. In the light of delays between an application for asylum and the submission of a take-charge request, however, what consideration was given to making the asylum application the cut-off for the process, rather than the take-charge request?

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It is a pleasure to serve under your chairmanship, Mr Hanson; I apologise for being a couple of minutes late to the Committee. I want to underline the points made by my hon. Friend the Member for Manchester, Gorton.

I am grateful to the British Red Cross for circulating to us some information on the impact of the instrument in the event that the UK leaves the European Union without a deal. I am grateful that the Minister has made it clear that if we leave with a deal, the Government will use the subsequent transition period to ensure that we will be part of the Dublin III regulation. That is a very welcome assurance.

The problem is that if we leave without a deal, we will immediately be in a position whereby Dublin III will not apply to us. Instead of passing this SI, should the Government not commit to keeping us in Dublin III for the period immediately after we leave—if we leave without a deal—to ensure that the type of family reunions that are now possible continue at their current level, which, as my hon. Friend rightly pointed out, was significant in 2018?

It is not clear why the SI has been framed in such a way that we would leave the Dublin III regulation immediately on exiting the EU if we did not have a deal. It is clearly the Government’s intention that we should be part of that arrangement in the longer term. As I have said, I am glad that the Government have committed to thinking about negotiating that during the transition period. However, I am concerned that, as worded, the SI would take us out of that regulation immediately if we left the EU without a deal, so I hope the Government will take a different approach on that point.

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I will speak briefly, Mr Hanson, by way of an alternative to intervening on the Minister, because it will give her more opportunity to reflect on what I have to say, and I only really want to say one thing.

First, this statutory instrument, like many others that we are debating at the moment, changes an enforceable EU right into a retained enforceable EU right. That is the pattern of what we are doing, but it is really important that we recognise that while that is acceptable for a limited period—a transition period—it is not acceptable long term. We need to revise our thinking sufficient to satisfy the expectations of the population who regard our immigration policy as having been out of control for some time. Secondly, there is a need to skill our own people to do many of the jobs that have been done by EU migrants in recent times. Thirdly, I want to respond to the profound concerns that people in my constituency and others have about population growth. We are growing our population at something like a quarter of a million per year, and that simply cannot be maintained indefinitely. It places immense pressure on public services, it changes the character of the place in which we live very significantly, and people do not want any more of it.

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rose—

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On that note, and without wishing to detain colleagues on the Committee unduly, I happily give way to my hon. Friend.

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I am very grateful to my right hon. Friend for giving way. He is showing the advantage of making a little speech-ette rather than asking a question, as it enables me to intervene on him. As one Administration cannot bind another, can he not be assured that something like this order cannot be everlasting forever?

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I am guided and informed, as ever, by the expertise and diligence of my hon. Friend, who brings both those things, among many other virtues, to all of his work and to our endeavours. He is right, of course, that leaving the European Union provides a chance—but no more than that—to reconsider what future we want to build. I do not want to open up this debate—indeed, you would not let me, Mr Hanson—except to say that my hon. Friend, as ever, makes an apposite, incisive and erudite contribution to our affairs.

With that—some might say excessively complimentary —response, I will bring my remarks to a conclusion. I simply seek the Minister’s assurance that the Government will indeed look afresh at these things. I do not say that we will change everything; of course we will not. We will continue those things that are right for Britain, and many are, but we would not want simply to plough on regardless.

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I fear that I will not make a speech-ette, but there will certainly be no ploughing on regardless either. I am grateful for the Committee’s contributions to the debate and I will address some of the issues raised.

The hon. Member for Manchester, Gorton asked why we are not using the immigration Bill for these provisions. Of course, these provisions are very much in preparation for no deal, which is an eventuality that I do not want. The Government continue to work hard to secure a deal, but unless alternative arrangements are made, it is the default legal option. As he pointed out, the immigration Bill has just completed its Committee stage in the Commons and, to be frank, we do not expect it to have Royal Assent by 29 March, which is when these measures might be needed.

The use of secondary legislation and the immigration rules, as the hon. Gentleman mentioned, is a long-established method that we have used to make changes to the immigration system. Under those well-established procedures, such changes are still subject to proper parliamentary oversight and debate, including through Committees such as this. The hon. Gentleman will know, as we discussed at the Committee stage of the immigration Bill, that the Law Commission is currently conducting a public consultation on the simplification of the immigration rules, commissioned by the Government. We look forward to receiving its response and considering its report in due course. As he knows, I am on record as having said that such simplification is much needed.

The right hon. Member for East Ham and the shadow Minister mentioned the Dublin III regulation, which is arguably the most significant regulation revoked by this instrument. As Members will be aware, the Dublin regulation contains rules for establishing the criteria and mechanisms for determining the member state responsible for examining an asylum application lodged in a member state by a third-country national or a stateless person, and the legal framework for returning asylum seekers to, and accepting them from, the EU. This instrument ensures that the statute book will continue to function effectively for asylum in a no-deal scenario and provide transitional arrangements. Should the UK leave the EU with no deal, those Dublin requests relating to family reunification that are still pending resolution will continue to be considered under existing provisions. That would apply to any take-charge requests that we have received before exit.

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I am grateful to the Minister for that reassurance that applications that are already in the system will continue to go forward. However, given that the Government have committed to seeking to extend the Dublin III arrangements for good if we get a deal, should this SI not provide for us to continue those arrangements in the event of no deal as well? I cannot think of any reason why leaving the EU without a deal should prove disadvantageous to families seeking reunion under the existing asylum arrangements.

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I welcome that intervention, but we have to be realistic about leaving the European Union and needing a cut-off date. Dublin is a reciprocal mechanism, and we cannot oblige other EU member states to comply with the process after the UK has left the EU. The right hon. Gentleman is absolutely correct: we want a comprehensive readmission agreement that could include family reunion, if that were reciprocated. However, given the wider issues at stake with the EU, including matters such as data adequacy, we cannot continue Dublin III post exit.

As a consequence of leaving the EU, the UK will no longer be a participating state in the Dublin regulation. That certainly presents a challenge, but it also presents us with an opportunity to seek new agreements with the EU on asylum that better reflect our position as a third country. Since 2016, we have accepted more Dublin transfers than we have returned to our EU partners. The latest available published data shows that 209 people were returned to the EU27 under Dublin 2018, meaning that returns under that regulation make up about 5% of total asylum returns.

This instrument is designed to prevent any deficiencies arising from the UK leaving the EU. It ensures continuity until the Immigration and Social Security Co-ordination (EU Withdrawal) Bill allows the Government to introduce the future new borders and immigration system. On that basis, I commend the regulations to the Committee.

Question put.

Division 1

18 March 2019

The Committee divided:

Ayes: 9
Noes: 8

Question accordingly agreed to.

View Details

Resolved,

That the Committee has considered the draft Immigration, Nationality and Asylum (EU Exit) Regulations 2019.

Committee rose.