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Draft Immigration (Provision of Physical Data) (Amendment) (EU Exit) Regulations 2018

Debated on Monday 16 July 2018

The Committee consisted of the following Members:

Chair: Sir Christopher Chope

† Coyle, Neil (Bermondsey and Old Southwark) (Lab)

† Dakin, Nic (Scunthorpe) (Lab)

† Graham, Richard (Gloucester) (Con)

† Grogan, John (Keighley) (Lab)

Jones, Graham P. (Hyndburn) (Lab)

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

† Letwin, Sir Oliver (West Dorset) (Con)

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

† McDonald, Stuart C. (Cumbernauld, Kilsyth and Kirkintilloch East) (SNP)

† McMorrin, Anna (Cardiff North) (Lab)

† Masterton, Paul (East Renfrewshire) (Con)

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

† Morris, David (Morecambe and Lunesdale) (Con)

† Nokes, Caroline (Minister for Immigration)

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

† Watling, Giles (Clacton) (Con)

† Wragg, Mr William (Hazel Grove) (Con)

Kenneth Fox, Committee Clerk

† attended the Committee

Third Delegated Legislation Committee

Monday 16 July 2018

[Sir Christopher Chope in the Chair]

Draft Immigration (Provision of Physical Data) (Amendment) (EU Exit) Regulations 2018

I beg to move,

That the Committee has considered the draft Immigration (Provision of Physical Data) (Amendment) (EU Exit) Regulations 2018.

It is a pleasure to serve under your chairmanship, Sir Christopher. This draft statutory instrument was laid before Parliament on 2 July. On 21 June we published a statement of intent and I made a statement to the House on the European Union settlement scheme. The statement of intent sets out details of how EU citizens and their family members will be able to obtain settled status in the UK. It also sets out how the process will be straightforward and streamlined, and that we will support applicants to get the right outcome.

EU citizens will need to meet three core criteria to be granted status under the EU settlement scheme: proving their identity, showing that they are resident in the UK, and declaring whether they have any criminal convictions. The draft regulations form part of the legislative underpinning for that scheme.

As is currently the case with applications for documents under EU law, the draft regulations will enable us to require EU citizens and their family members to provide a facial photograph as part of their application for status under the settlement scheme. We need that to check their identity and to confirm that the passport or ID card that they have provided belongs to that person, which will help us to identify and to deter any fraudulent application, and to process applications as quickly as possible.

As is also currently the case in the immigration system, non-EU family members applying under the scheme will be required to enrol their fingerprints, unless they already hold a biometric residence card. Recording biometric data and biographical information is important because we can confirm a person’s biographical details and fix them to their unique biometric identifiers, establishing a reliable link between holders and their status. That also allows us to check against existing records to ensure that the person who applies is not known to the police by another identity.

I would like to take this opportunity to reiterate that the EU settlement scheme will deliver on our commitments to administer a straightforward process. We are designing the online application form so that it is short, simple and user-friendly. It will be accessible by computer, tablet or smartphone, with clear guidance every step of the way. EU citizens’ facial photographs will therefore be captured digitally as part of the application process. Those non-EU family members who do not already hold a biometric residence card will need to attend one of our application centres to enrol their fingerprints and facial image.

Approval of the draft regulations is an important step in getting the EU settlement scheme up and running. I commend the regulations to the Committee.

It is a pleasure to serve under your chairmanship, Sir Christopher.

The Labour party opposes this draft statutory instrument. Significant powers to collect biometric data have been too widely defined and the regulations have been drawn up without regard to vulnerable groups, adequate consultation or the Brexit negotiations.

Our first area of concern is the scope of the powers in the draft regulations. Will the Minister clarify what data the Home Office will collect, and from whom, under this statutory instrument? The EU settlement scheme says that EU citizens will be required to provide a facial image, but does not mention other biometric data. Will she confirm that EU citizens applying for settled status will not be required to supply, beyond a facial photograph, fingerprints or other biometric data? Will she also confirm that the draft regulations do not allow any changes to those requirements without coming back to Parliament? Will she confirm that the Home Office will not have the power to collect biometric data beyond fingerprints for non-EU family members of EU citizens?

The Home Office has repeatedly emphasised that the application process will be streamlined, user-friendly and entirely digital. Will the Minister confirm that requiring applicants to provide biometric data, including fingerprints, means that an application cannot be completed online? That will place further barriers to registering this large population before the end of the implementation period, and increase the likelihood that we will have a large undocumented population, come the end of the transition period.

The draft regulations deal with family members of EU citizens, but do not specify to which family members they refer. That leaves open the possibility that British-born children, or children who have spent most of their life in the UK, may be required to pay to provide biometric data. Can the Minister confirm that special consideration will be made for children, so that they do not have to go through the lengthy and expensive process of providing biometric data? The Migration Observatory has highlighted the children of parents who either do not apply for settled status or do not know that their children need to apply as being particularly at risk. How is the Minister further protecting children who are dependent on their parents for a settled status application?

Secondly, we are concerned that not enough is being done to mitigate the impact of this measure on vulnerable groups. Not enough has been done to reduce the costs for citizens with lower income. In the case of a family of five, regardless of their financial situation, they will need to pay £227.50 to apply for a status that they did not need before. This is a significant cost for individuals and families to bear, and might even deter them from applying for settled status, which would leave them vulnerable, as they might become undocumented in the country. What financial assistance will the Government provide to low-income people who need to apply for settled status?

Can the Minister also confirm whether providing biometric data to the Home Office will be an additional cost, and therefore an additional barrier, to applicants? The former Immigration Minister spoke to the Lords EU Select Committee in December and assured it that we could forgo health insurance for students and those who are economically inactive. There is no mention of that in the statutory instrument, so can the Minister confirm those comments?

Although it is welcome that, to some extent, advice and support for applicants will be provided, it is not clear what the scope of that assistance will be, or how many caseworkers there will be and what training they will receive. The Minister has talked before about a customer contact centre. Can she provide any further information about who will staff the centre and whether information disclosed to it will be passed to immigration enforcement officials?

The question of how employers, landlords or banks have been consulted on the settled status scheme remains ambiguous. Applicants need to prove their status to these people or bodies in order to obtain a work contract, bank account or rental agreement. There is already evidence that EU citizens are being discriminated against in the rental and employment markets. What specific consultation has taken place with employers, landlords and bank groups on the settled status scheme and how has their advice been incorporated thus far?

We are concerned that successful applicants will not be given any physical document that evidences their status, as current biometric residence card holders are. This is a serious problem for the digitally illiterate. For example, there are particular concerns among the Gypsy, Traveller and Roma communities that this decision will effectively amount to exclusion of their communities, so will the Minister consider introducing physical proof of status?

Our third area of concern is around the lack of consultation. Paragraph 10 of the explanatory memorandum says:

“The Home Office has not undertaken a full public consultation, but the policy has been discussed with its internal and external stakeholders, such as groups representing EU citizens in the UK”

and other groups. What specific groups have been consulted to represent EU citizens in the UK, and how have their assessments of the amendments been incorporated in the draft? Also, what further details can be provided about the future full public consultation that will take place?

Paragraph 5 of the explanatory memorandum says that the Minister for Immigration believes this statutory instrument is compatible with the European Convention on Human Rights. However, as this statutory instrument deals with collecting biometric data, we do not believe that it is enough for the Minister to make that judgement on her own. Will she carry out a full and thorough consultation on the instrument’s compatibility with the European Convention on Human Rights?

Paragraph 12 of the explanatory memorandum says that the impact on the public sector

“is expected to be minimal as these Regulations only affect individuals.”

Tens of thousands of EU nationals work in our NHS and public sector. The Scottish Government are paying for all public sector workers’ settled status applications. Will the Minister consider doing that for other parts of the UK too?

Finally, we are concerned about the potential impact on negotiations with the EU. The statutory instrument has been drafted without regard for the Brexit negotiations or the EU law that still applies to the UK while we are a member of the EU. The Government have consistently neglected the negotiations. The previous Secretary of State for the Brexit Department hardly visited Europe for negotiations, and the new Secretary of State has decided to take an evening off rather than attend the first day of the first round of negotiations since he got the job.

The shadow Minister is making a number of points. Clearly there is a pay-off between full and maximum consultation and having something that is implemented in a timely way, so that it is available for people as soon as possible. On his second point—which is beginning to deviate into personal criticism of the politicians involved—does he accept that, for those of us on the Brexit Select Committee, this is an incredibly important development that is absolutely in kilter with the tone of the negotiations, which is to resolve problems for citizens, whether European or British?

I thank the hon. Gentleman for his question. I do not disagree that it is important; that is precisely why I am asking the questions. It is vital that we get this right.

What discussions has the Minister had with the EU to establish whether it will accept the provisions in the instrument, and what evaluation has she carried out to establish that the powers are legal while we are still members of the EU, given that we are not requiring UK citizens to submit the same kinds of data? There are serious concerns that the EU settlement scheme will cause an explosion of bad advice from phoney solicitors, exploiting vulnerable applicants. With vital protections stripped away in the recent Data Protection Act 2018, there is an even greater need for good advice. What is the Minister doing to make legal advice available for those who need it among the 3.6 million?

I have outlined the serious concerns that the Labour party has about the statutory instrument. The powers have been insufficiently defined, there has been no thorough consultation, and there has been too little regard for our negotiations with the EU. The EU settled status scheme is being introduced in the context of the “hostile environment”. Ministers have claimed that the process will be straightforward and streamlined, and that caseworkers will be given the benefit of the doubt. However, such an approach would require a total overhaul of the culture and training in the Home Office. I do not believe that that can be achieved in 18 months, so it is essential that we protect all the safeguards, checks and balances that we can.

It is a pleasure to serve under your chairmanship, Sir Christopher. I can be very brief, because I share most of the concerns that the shadow Minister has expressed.

I will briefly focus on the scope of the instrument. As long ago as September 2017, there were Home Office assurances that EU citizens would not be fingerprinted after Brexit. In the light of those assurance, the 3 million subsequently issued a statement—with the Home Office’s agreement, as I understand it—that said:

“The Home Office has confirmed in accordance with the Policy Paper (of 26th June 2017) and subsequent negotiations with the Commission on Citizens’ Rights its position that EU citizens…will not have to submit fingerprints”.

The Government then repeated those reassurances in their technical note “Citizens’ rights—administrative procedures in the UK”, published on 8 November 2017. Paragraph 12 said:

“We will verify identity and are considering digital ways to do this in order to make it both secure and user-friendly. We intend to ask applicants to submit a photograph. We will not ask EU citizens for other biometric data such as fingerprints.”

My simple question is: why is the Home Office seeking to help itself to a broader power to do something that it has previously said expressly that it would not do? Are we not in danger of undermining reassurances that have been given to EU citizens, and drawing back on them?

It is a pleasure to follow the other hon. Members who have spoken, particularly my hon. Friend the Member for Manchester, Gorton.

It is two years since the referendum and 16 months since the Government triggered article 50, and this is it. I have 9,800 constituents who are affected by this issue—non-UK EU nationals living in Bermondsey and Old Southwark. They were hoping for more information. They still have no idea of the cost of registering in the new process. That is meant to be sorted by October. We have three months left, and eight months until we are supposed to leave full stop. The Government said that registering could cost less than a passport, but this was an opportunity to provide more information. If my constituents face a charge of £70 each, they will collectively be charged £686,000 for the new process.

The Government are still not clear about what people are registering for. What rights will it help them to accrue, and are they intractable? If someone has been here for five years and secures permanent residence, but then leaves for five years for work or due to care responsibilities, what are their legal rights? These regulations were an opportunity to address that. Will the Minister clarify whether someone in those circumstances will have lost permanent residence, or whether they will be able to return unfettered?

This issue also affects UK expats living in other EU countries. One of my constituents, Adrian Priestman, gave me a book entitled “In Limbo Too”. He lives in France, and his wife holds dual nationality, lives in the UK and works in the NHS. One of the book’s chapters is called “I have been worried each and every day since the Referendum”, which speaks volumes about the UK Government’s abandonment of that group. What does the Minister expect other EU member states to do for UK nationals living in their countries in response to the regulations? What relationship can those people expect, given the uncertainty that results from the lack of information?

We expected the regulations to outline the process in more detail. The Minister said that much of it will be digital—fingerprints will be done digitally, for instance—but acknowledged that the biometric data cannot be digital. What assurance does that give, given the mess of online information sharing for universal credit and from other Departments? Will the Minister give an assurance that information can be shared safely under any digital process?

The Government were also supposed to use the regulations to clarify health insurance issues. The then Minister said to the House of Lords in December that the requirement to have health insurance might be waived for some EU nationals living here, including students and economically inactive people. Seven months later, there is nothing in the regulations to deliver on that approach. It is a chaotic approach from a Government riddled with division—there has been another resignation today. Will the Minister tell us how EU nationals will be helped to secure health insurance or be made aware of the need to secure it? Who do the Government now expect to be exempt?

The Government were also supposed to show how they will support EU nationals living here. Some 2.9 million people are affected, and there is nothing in the regulations to show how they will be helped through the online process. Will the Minister indicate whether the Home Office or another Department is responsible for that?

Worryingly, the regulations cover many children. Will the Minister outline how many will be affected and what registering means for them? Paragraph 3.2 of the explanatory memorandum says that the scheme is for EU nationals living in the UK, but it also says that some British citizens could be covered. How many, and at what cost? There is so little detail. That will appal the families in my constituency who were expecting the regulations to provide more detail. There is the potential for more British children to be taken into the system, because British children with dual-nationality parents will be affected. Again, how many, and at what cost? Where is that information to be found?

The Government say that the regulations are compatible with the European convention on human rights. How so, if one citizen has rights that another one is expected to pay for? If a family leaves due to the high cost, their right to family life is obviously affected. Human rights are meant to provide a platform of equality. The regulations will provide for unequal UK citizenship and allow for discrimination against some families, which would be against article 14. That follows the Government’s pattern of creating a hostile environment, which affects a lot of my constituents and leaves British parents unable to access child benefit and housing benefit. They are expected to pay £1,000 to the Home Office for an admin process that costs £300. The regulations will potentially take that much further and affect more British children, but very little detail has been provided.

The Government have said that there has been no consultation—we have had two years for a consultation—for significant changes that affect not just EU nationals but many others. They said that other Departments and consulates had sent in responses—there was not a consultation, but some have sent in responses. Will they be published? Why was it only the Department for Work and Pensions that responded, not the Department of Health and Social Care and other Departments? Which consulates responded? What did they ask for? That would be really useful information.

The Government also suggested that the regulations will affect only individuals. That is astonishing. Of course businesses are affected by them, as they may have to cover new costs for employees. There is no demonstration that the Government have understood the impact on business. There are more than 2.9 million EU nationals living here, and most are in work. It is an insult to businesses, and especially to small and medium-sized enterprises, to claim that there will be no effect. What about the impact on employees? As we have seen today, 139,000 EU citizens left last year, and fewer are coming in every year.

What about businesses’ ability to recruit? What assessment have the Government made of the cost of recruitment and retention to businesses up and down the country? I know that the Government have given up the ghost as far as pretending to be party of business is concerned. The former Foreign Secretary, the right hon. Member for Uxbridge and South Ruislip (Boris Johnson), showed that as he pootled round the globe like Toad of Toad Hall—not always to dodge votes in this place—using highly colourful language about what he thought of British business. The regulations take that even further.

However, it is not only business that is affected. The Government claim there is no impact on the public sector. There are more than 50,000 EU nationals working in the NHS. Local authorities and NHS trusts commission St Christopher’s to provide palliative care and end-of-life care, and they rely on a workforce that in my constituency is 53% non-UK EU nationals. That is why an impact assessment was essential. Why did the Government not undertake one for the regulations? It could have revealed all the issues. Despite the impact on business, employment, health and social care, disabled people whose health and social care services are affected and the women who are the majority of the workforce in those sectors, as well as the potential for age discrimination against children from new costs, the Government should consider an impact assessment now—in full.

The Government say that the regulations will be monitored and reviewed, but there is no detail about how, when there is so little time to get things right. It is important to ask when the regulations will be reviewed. In 10 years, or a month? Will they be under constant review? Will any review consider the average process times for those who apply, and what will the Government do to address emerging challenges? It is important to get that right.

Home Office understaffing means that more than 300,000 people are waiting for decisions right now. That affects my constituents every week, because it takes more than eight months to get the simplest of visas. Lillian came to see me on Friday. She has leave to remain. She expected a biometric card in April, but it still has not arrived. As a result she has missed her father’s funeral in Lagos. Her mum is now in a critical condition in hospital in Nigeria as well. That card needs to arrive. No one should be similarly affected by the process, but there is no commitment in the regulations or associated documents on how the Home Office will address that kind of delay.

Business is affected as well. A financial news specialist firm from my constituency told me it is moving 30 jobs to Düsseldorf because of the Home Office delays in getting visas. It cannot wait, and that is under the current system. These regulations will add more people and work into Home Office systems, with no commitment to resourcing them, so how will the Government prevent further delays and their impact on business?

There are time limits on applying for registration, so how will the Home Office extend the timeline for applying, to cover delays? That should be in the regulations. The drafting of the statutory instrument is an insult to UK and EU nationals alike, and I cannot possibly support it.

As I set out in my opening remarks, and as I told the House on 21 June, the EU settlement scheme will enable EU citizens and their family members to obtain settled status. We will ensure that there are assisted digital services to enable applicants to complete their applications online, where there are technology or access barriers. UK Visas and Immigration already has an assisted digital service to help the most vulnerable.

I thank the Whip for that question. UKVI staff already travel to individual applicants’ houses in some instances to assist them through the process, but we are hoping to roll this out to a range of other stakeholders, including organisations such as Citizens Advice and Age Concern, which have participated constructively in the various user groups that we have already set up.

How much money do the Government provide to organisations such as Citizens Advice, bearing in mind that it already sees 50,000 people a quarter as a direct result of universal credit? Does it have the capacity for that, and how much is it being resourced to try to cover the Government’s backside?

The hon. Gentleman makes an important point about support to local authorities and to Citizens Advice. We are not seeking to add burdens to those organisations that already provide great service to our constituents.

As I said, EU citizens and their family members who can provide evidence that they have lived here continuously for five years will be eligible for settled status. Those who have lived here for less than five years will generally be granted pre-settled status and be able to apply for settled status once they reach the five-year point.

Alongside the immigration rules and fees regulations that I will lay before Parliament shortly, the regulations that we have debated today will provide the legislative underpinning for an important scheme that I am sure all Members will agree we need to open as soon as possible. EU citizens will need to meet three core criteria to be granted status under the scheme: proving identity, showing that they are resident in the UK, and declaring whether they have any criminal convictions. Collecting biographical information and secure biometric data about applicants is critical to that process.

For those who wish to complete the application entirely online, an app will allow EU citizens to confirm the relevant details remotely on their mobile phone or tablet, or at a location established for them to use the app or be helped to do so. Alternatively, they will be able to send their identity document by post, and a dedicated team will check it and return it without delay.

Secondly, we will establish that the applicant is resident in the UK and, where appropriate, their family relationship to an eligible EU citizen. Where possible, we will do that automatically using employment and benefit records, but applicants will also be able to provide a range of supporting evidence and we will work flexibly with them to help them to evidence their continuous residence.

Thirdly, we will check that the applicant is not a serious or persistent criminal and does not pose a security threat. That is absolutely the right thing to do to protect everyone who lives in the UK. It will not affect the overwhelming majority of EU citizens and their family members.

The biometric regulations will enable us to require EU citizens and their family members to provide a facial photograph as part of their application, which we need to confirm their identity by comparing it with the photograph in their identity document, so as to be satisfied that they are one and the same person. We currently require a facial photograph as part of applications for documents issued under EU law, such as registration certificates and residence cards. As is currently the case across the immigration system, non-EU citizen family members who apply under the scheme will also be required to enrol their fingerprints, unless they already hold a biometric residence card.

Recording biometric data and biographical information is important because it enables us to confirm and fix a person’s details to their unique identifiers, and establishes a reliable link between the holder and their status. It also allows us to check against existing records to ensure that the applicant is not known to the police by another identity.

The withdrawal agreement permits the UK to open the scheme before we exit next March. It will be voluntary while EU citizens and family members exercise their free movement rights. Children under the age of five will not need to provide fingerprints, but we need to take photographs so that children are protected and do not face difficulty evidencing their stay in the UK.

It is for other member states to determine the rights of UK nationals living in the EU, but we are proactively engaging with them to encourage their preparations, alongside our detailed preparations. There is no requirement for comprehensive sickness insurance under the scheme, and that is not a matter for these regulations.

Biometrics will be used and shared only in accordance with the law, which will mainly be for law enforcement purposes or as specified in the regulations as amended. That does not include sharing biometric data with commercial partners. We will retain biometric information only as long as its retention is necessary in connection with an immigration or nationality purpose, and we will normally delete fingerprints 10 years after any leave lapses, unless the person is considered to be a threat of high harm to the UK, in which case we will retain them indefinitely.

I have a quick question, as I suspect we will not get answers to many of the others. Does the Minister expect the system to be as effectively and sensitively administered as that which affects Commonwealth citizens who are legally entitled to be here but are affected by the Windrush scandal?

The hon. Gentleman makes an important point about those Commonwealth citizens who have been affected by issues related to Windrush. The key issue for the Windrush generation is that they did not have documentation to evidence their legal immigration status, which is why it is so crucial that EU citizens and their family members apply under this scheme, so that they will be able to evidence their status in future.

We have engaged comprehensively with stakeholders throughout the process.

On the issue of engagement, as I said earlier, the Home Office has repeatedly said that it will not require fingerprints from EU nationals, but these regulations appear to allow for that to happen. Can the Minister clarify that?

For absolute clarity, the regulations allow for the collection of fingerprints from the non-EU family members of EU citizens. We will not collect fingerprints from EU citizens.

We have engaged with EU citizens at every stage of the development process, and will continue to do so. We recently set up a user group specifically for vulnerable users, which has enabled us to draw on important and useful information from organisations such as Age UK. We will continue to expand our communications to ensure that EU citizens are aware of the scheme, how it will operate and what information they will need to provide, and that they are reassured that they will have plenty of time to apply for their new UK immigration status.

The issue of fees was raised. That matter was comprehensively examined last week in front of the Exiting the European Union Committee. It is clear that the fee was agreed with the EU when we were conducting the citizens’ rights part of the withdrawal negotiations and, with a process that will take three years to complete, I absolutely expect that the average family will be able to save up the amount required.

An adult fee is £65, which is the same amount as the current fee for a permanent residence document. Of course, permanent residence is a status conferred under EU and not UK law, and it will lapse after we have exited the EU. For children it will be £32.50, and for children in care there will be no fee.

It was interesting that the Opposition spokesman, the hon. Member for Manchester, Gorton, called earlier for a prolonged consultation on the regulations while his colleague, the hon. Member for Bermondsey and Old Southwark, asked whether we could introduce them yesterday. Am I not right in thinking that they will come into force 21 days after they are made, and therefore EU nationals living in this country can get on with applying to regulate their status pretty quickly, which could not possibly happen if we had the sort of long consultation that the Opposition are calling for?

I thank my hon. Friend for his question. He is, of course, right: we want to crack on with this. To me it is important that we get the settled status scheme up and running, so that the EU citizens who have contributed so much to our community and our economy have the ability to confirm their status without further delay. I therefore hope that the Committee will approve the regulations.

Question put.


That the Committee has considered the draft Immigration (Provision of Physical Data) (Amendment) (EU Exit) Regulations 2018.

Committee rose.