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Immigration (European Economic Area) Regulations 2016

Volume 777: debated on Thursday 15 December 2016

Motion to Regret

Moved by

That this House regrets that the Government have laid the Immigration (European Economic Area) Regulations 2016 with insufficient explanatory material to allow the House to gain a clear understanding of the instrument’s policy objective or intended implementation; that they have not provided the House with key guidelines needed to direct how provisions are to be interpreted; and that there has been no prior consultation for a significant change in practice for courts and tribunals considering the restriction of freedom of movement. (SI 2016/1052) 14th Report from the Secondary Legislation Scrutiny Committee

My Lords, I want to go through in some detail what has led me to table the Motion and why I think an explanation from the Government is required. It relates to the findings in two reports: the 14th and 17th reports of the Secondary Legislation Scrutiny Committee. I am not sure that the Motion can be regarded as a surprise. To put it in context, the Home Office is something of a regular offender when it comes to getting on the wrong side of the committee. In its final report of the previous Session, it included a section on the annual work of the committee. Paragraph 36 stated that as a result of the number of deficient Explanatory Memoranda, a new ground for reporting an instrument had been introduced at the beginning of the 2014-15 Session:

“the explanatory material laid in support provides insufficient information to gain a clear understanding about the instrument’s policy objective and intended implementation”.

The paragraph concluded:

“There are, however, still far too many EMs that use obscure jargon or tell us what the instrument does without giving us sufficient context to judge whether the change is significant or appropriate. The Home Office, Defra, DWP and the Ministry of Justice have been particular offenders in this session”.

The Home Office provided two of the 13 instruments reported for inadequate information last Session: the statement of changes in immigration rules and the Asylum Support (Amendment No. 3) Regulations 2015. The regulations which are the subject of my regret Motion are apparently one of only two instruments reported on the ground of insufficient information so far this year. I am advised by the Committee Office that the Secondary Legislation Scrutiny Committee does not report in this way to the House when there are just minor glitches. It is done only, as with these regulations, when the missing material is vital to a proper understanding of the policy.

So what are the issues raised by the committee? First, Schedule 1 sets out for the first time a non-exhaustive list of the “fundamental interests of society” which a court or tribunal must have regard to when considering restricting the right of EU citizens and their families to move and reside freely within the territory of the member states. The committee states:

“We are surprised that so significant a change should be implemented by a negative instrument, and also that it was undertaken without any prior consultation”.

Paragraph 8 of the Government’s Explanatory Memorandum, on consultation, asserts:

“The 2016 Regulations in large part consolidate and clarify the provisions under the 2006 Regulations, modernising the language used and simplifying terms where possible in line with current drafting practice. Therefore, no external consultation has been undertaken”.

That would be a convincing explanation of the need for no external consultation, but for the reality that what it says about the regulations is questionable, and clearly did not convince the Secondary Legislation Committee.

I move on to the other issues raised by the committee. In a letter to the Minister of State for Immigration at the Home Office, the chairman of the committee, on the committee’s behalf, stated that it had,

“significant concern about the open-ended character of some provisions in the Regulations and whether they could be interpreted consistently and objectively”.

In that context, the chairman referred specifically to,

“the decision as to whether the residence of a British citizen and another family member in an EEA state is ‘genuine’ (regulation 9); and ‘preventing social harm’ or ‘protecting public services’ under Schedule 1”.

Paragraph 9 of the Explanatory Memorandum states that the Home Office will be issuing guidance. In his letter to the Minister, the chairman of the committee asked the Minister to,

“tell us how the guidance will support understanding of these and other similarly broad expressions contained in the Regulations”.

The chairman went on to say:

“We would also be grateful if you could send us a copy of the guidance with your response and confirm that it will be available to Parliament without delay so that it can be taken into account should these Regulations be debated”.

There was also a reference in the letter to the fact that, under subparagraph 7(h) of Schedule 1 to the regulations,

“numerous lesser offences can be aggregated”.

The committee chairman added that,

“we would welcome clarification about what sort of offences are intended and how many will qualify a person for removal”.

In his reply, the Minister, Robert Goodwill MP, referring to the use of the word “genuine”, said:

“Guidance will set out how caseworkers should approach the ‘genuine residence’ question and the other conditions of regulation 9. The guidance will be published on on 25 November when the changes to regulation 9 come into force. We will notify the Committee when it is available”.

On the references to the wording in Schedule 1, such as “preventing social harm” and “protecting public services”, the Minister said in his response:

“The Regulations need to be able to relate to a broad and varied array of circumstances in which an individual may pose a threat and so it is inevitable that some of the provisions are somewhat general in nature”.

Under the offences referred to under subparagraph 7(h) of Schedule 1, the Minister said:

“There is … no prescribed list of the offences that will fall under subparagraph 7(h) of Schedule 1, nor is there a threshold to the number of offences that must be committed in order to qualify a person for a decision to be made on the grounds of public policy or public security”.

The Minister went on to say:

“These Regulations will be accompanied by guidance to assist with the interpretation of the provisions. This will provide more detail on the sorts of circumstances which could be considered when making a decision on the grounds of public policy and public security. The guidance will be published on on 1 February when the provisions come into force. We will notify the Committee when it is available”.

Not surprisingly, the committee was unimpressed with the Minister’s response. It said in its 14th report, published on 17 November, that the Home Office guidance to accompany the regulations had not been available to it for its,

“initial scrutiny and nor was a draft”.

It referred to the fact that it had written to the Minister about this and that his reply,

“simply refers us to the guidance which, we note with disappointment, will not be published until the very day the legislation comes into effect”.

The committee went on to say in its report:

“We reiterate our strongly held view that if guidance is intended to direct users on how specific terms should be interpreted or how decisions should be made, it should be laid with the instrument and be available to Parliament throughout the scrutiny process. It would be even better if such definitions were clearly set out on the face of the instrument”.

The committee wrote again to the Minister, Mr Goodwill MP, on 16 November. In its 17th report, published on 8 December—that is, just a few days ago—it said:

“The Minister’s reply of 24 November was again unsatisfactory. He was invited to provide a fuller response which he did in a letter dated 5 December”.

That was the Minister’s third attempt at a letter. The committee continued:

“Although this second response goes some way towards addressing the points we originally raised, it fails to deal with the Committee’s core concern that such open definitions may be inconsistently applied in different parts of the country and result in injustice for individuals”.

The committee’s report goes on to say:

“This instrument exemplifies our more general concern that guidance is being used to supplement secondary legislation with material that should have been included in the legislation itself. In this case, the Home Office has told us that the relevant guidance will not be published until February 2017 when the legislation comes into effect. Our concern about the late availability of the guidance, which we expressed in our 14th Report, has since been aggravated by the publication by the Home Office of guidance in relation to determining the ‘genuineness’ of a marriage (which forms another part of the same instrument) which includes a number of redacted sections which are ‘for Home Office use only’. We question how the courts and individuals can assess their position correctly if a number of the determining factors are kept from them”.

I have a page from the guidance to which the committee is referring. It is page 35 of 44, published for Home Office staff on 25 November 2016. At the top of the page it says:

“Official—sensitive: start of section. The information on this page has been removed as it is for internal Home Office use only”.

Then, right at the foot of that page, the same text appears again. It is no wonder that the committee chose to draw attention to that state of affairs. The report goes on:

“The Minister’s letter of 5 December provides some information about the meaning of ‘protecting public services’ in that he says the expression ‘could be interpreted as benefit fraud or tax evasion, though these examples are not exhaustive’. He fails entirely, however, to address our concern that the term could also be interpreted in a number of less obvious ways, creating a problem for the courts and potential inequality among individual cases. It would, in our view, be more appropriate for such definitions to be fully set out in the Regulations; and, if not, then, as we said in our 14th Report, the relevant guidance should be laid with the Regulations and be available to Parliament throughout the scrutiny process. This is not a new concern, in relation to the Draft Social Security (Personal Independence Payment) Regulations 2013, for example, we said, when ‘guidance is so material to the House’s understanding of how the system will operate for individuals, rather than on a theoretical level … proper scrutiny is not possible if the guidance is not published’”.

I appreciate that we are talking about a report from a House of Lords committee, so it may be that a Commons Home Office Minister does not attach as much importance to its views as he should. I hope that the noble Baroness would adopt a rather different approach. The House of Lords Secondary Legislation Scrutiny Committee has far more experience and expertise in commenting with authority on what does and does not constitute good practice in secondary legislation than any House of Commons Minister whose experience is limited to their own department’s culture in this regard and not to the much wider picture.

The committee is also a cross-party committee, chaired, I believe, by one of the Minister’s noble friends. It is hardly likely to express itself so firmly and clearly for the purpose of making mischief. The committee acts on behalf of this House and its work is valued and appreciated. It took three letters from the Minister and a meeting with the Secondary Legislation Scrutiny Committee chairman, I understand, before a reply was received that even went some way to,

“addressing the points we originally raised”,

but still failed, in the committee’s words,

“to deal with the Committee’s core concern”.

To ignore the reports of the committee is to ignore this House. It is also clear that this is by no means the first time that the Home Office has incurred the metaphorical wrath of the committee. Indeed, I think in one of his letters to the Minister of State for Immigration at the Home Office, the chairman of the committee also referred to two other recent Home Office instruments that had caused the committee concern for similar reasons. Therefore, why could not the definitions in question have been fully set out in the regulations? If there is a credible reason for that—I wait to see whether there is—why could not the relevant guidance have been laid with the regulations and been available to Parliament throughout the scrutiny process? Why could not a Government who say that they want to be open and transparent have done that? Why have such significant changes been implemented by a negative instrument in respect of which there was no consultation and no guidelines even made available with the regulations or made available throughout the scrutiny process?

Will the further guidance the Government intend to delay until February, when the relevant provisions come into force, now be published well before then in the light of the Secondary Legislation Scrutiny Committee’s comments, and if not, why not? Surely, on reflection, the Minister would agree that this statutory instrument should have been dealt with through the affirmative process and not in the way that it was.

Finally, what is the procedure adopted by the Home Office when faced with these two critical reports from the committee—namely, the 14th and 17th reports? At what level have the committee’s findings been considered, or will be considered, in the Home Office, and who has responsibility in the Home Office for ensuring that this is the last such report which the Secondary Legislation Scrutiny Committee feels it has no choice but to issue in relation to a Home Office statutory instrument? This issue of making the appropriate information available, and of issuing guidance so that that guidance can be scrutinised by Parliament if there is an unwillingness to put the information into the regulations, affects the ability of Parliament to call the Government to account. That, in a sense, is what is at stake, and what the Home Office has sought to avoid through what it has done in relation to these regulations. I hope the Minister will be able to give satisfactory responses to the questions I have raised. After I have heard her reply, I hope I will not be left with the feeling that the Home Office’s position is that the committee can say whatever it likes, but the way the Home Office carries on will continue unchanged.

My Lords, I join the noble Lord, Lord Rosser, in his expression of regret. I was for some time a member of the Secondary Legislation Scrutiny Committee and can confirm his characterisation of the restraint it uses in its reports. It does not use extreme language and reports to the House only when it is very necessary to do so. My regret goes wider than the process but the committee is to be thanked for that process. It is dogged in its pursuit of detail and in reminding departments of the requirement to maintain the necessary standards as regards the mountain—it is a mountain—of instruments which are put before Parliament.

I shall say a few words about these regulations but I want to make a broader point. The likelihood must be that, in connection with exiting the European Union, Parliament will be asked to approve, or not to oppose, very large quantities of secondary legislation. I think of the great repeal Bill as a great reinstatement Bill because it will repeal one thing but it is likely to provide a mechanism for reinstating a very great deal of our current legislation, as an awful lot of legislation will have to be reinstated in domestic law. It is critical—I do not use that term lightly—that those instruments have the highest standards and do not require the sort of pursuit of detail, or indeed of meaning, that characterises this instrument.

I have more of an objection to these regulations than the committee has, and I guess that it would have been outside its remit. The undesirability of regulations which require guidance for them to make sense is an issue. The committee says that guidance should be available in draft when the regulations are being considered so that Parliament can in effect treat them as part of the scrutiny process. It should not be necessary to rely on guidance to understand the kernel—the fundamental issues raised by regulations. That is not only because, like regulations, guidance is unamendable by Parliament but because it can so easily be changed without reference to Parliament.

The committee in this instance quite rightly advises the House that the interpretation of specific terms and how decisions are made should be set out clearly in this instrument. I note that it says:

“A fundamental tenet for new legislation is that it should not make work for the courts by using loosely worded provisions”.

That is particularly notable since the Government so much object to what they perceive as judge-made law.

These regulations deal with particularly sensitive subjects, so the issue of redaction, raised by the noble Lord, Lord Rosser, is of concern. Paragraph 2 of Schedule 1 is about integration—a topical and concerning issue. Paragraph 7 of Schedule 1, to which the noble Lord referred, attempts to define, although not exhaustively, the “fundamental interests of society”. The best that can be said about them is that may be a better term than “British values”. The committee says:

“We are surprised that so significant a change should be implemented by a negative instrument, and also”—

as the noble Lord, Lord Rosser, said—

“that it was undertaken without any prior consultation”.

I could imagine this House spending at least two days debating the fundamental interests of society, and probably not coming to a conclusion. Academia could spend months and years over it. To see them listed, or purported to be listed, in the schedule to unamendable regulations, is therefore bold. I will not attempt to analyse and critique the list, but I cannot resist mentioning the conjunction of a sub-paragraph about “protecting public services”, which is right up against,

“preventing the evasion of taxes”.

Although it would not be relevant to this, you cannot think about that without the context of how services and taxes relate to one another. Perhaps more importantly, the people who will be affected by this and who see that conjunction of issues may well wonder what fundamental interests—or interest—society has in their position, and the way they will perceive these regulations will not be a happy experience. We support the Motion.

My Lords, I thank both noble Lords who have made comments during this debate.

Following the public’s vote to leave the European Union and until exit negotiations are concluded, all the rights and obligations of EU membership remain in force and the Government will continue to apply and implement EU legislation. It is important to continue to make this point at the outset. At present, the rights of EEA nationals and Swiss citizens to live and work in the UK have not been affected by the referendum.

It is the free movement directive that mainly sets out those rights, and it is implemented in the UK through the Immigration (European Economic Area) Regulations 2006, as amended. These regulations were amended in 2009, 2011, twice in 2012, twice in 2013, three times in 2014, and in 2015 to reflect developments in immigration policy and to give effect to relevant case law. As noble Lords will therefore appreciate, this has resulted in a legislative framework that has become quite fragmented and complex.

The new 2016 regulations, which are the subject of today’s debate, do not significantly change the Government’s policy and legal position as set out in the 2006 regulations. Their main effect is to revoke and replace the 2006 regulations, consolidating the previous legislation, modernising the language used and simplifying terms, where possible, in line with current drafting practice.

The Government have also taken this opportunity to address issues concerning the practical application of the 2006 regulations and to clarify our approach in key areas such as criminality and the abuse of free movement. These changes are not about restricting the free movement rights of law-abiding EEA nationals and their family members who make a valuable contribution to society but about making sure that we are in the strongest possible position to deal with those who come here and do not abide by the rules.

I totally agree with noble Lords that it is undesirable to have regulations that are broad and open-ended in nature. That is precisely why we have made some of these changes. For example, the 2006 regulations stuck closely to the wording of the free movement directive, simply providing for a person to be expelled from the UK on public policy and public security grounds where their conduct represents a,

“genuine, present and sufficiently serious threat affecting one of the fundamental interests of society”.

That wording clearly covers a wide range of scenarios and could be criticised as being too broad and overarching, possibly giving rise to a lack of certainty, either for individuals or for the courts, as to what behaviour might meet that threshold.

European Court of Justice case law in this area is clear: member states have a margin of discretion to determine the fundamental interests of their society. Therefore, the 2016 regulations are now significantly clearer by providing further descriptions and examples of matters of public policy and public security, and they provide more detail about what the Home Secretary considers to be in the fundamental interests of the United Kingdom in respect of taking such decisions under these regulations.

The changes clarify that we can take deportation action in a broad range of cases, including against those who abuse their free movement right by facilitating illegal immigration or engaging in immigration abuse—for example, through sham marriage—or those who undermine our public services through tax evasion or benefit fraud. The regulations also make it clear that it is not only high-harm criminality that threatens the fundamental interests of the UK but persistent low-level offending as well.

As noble Lords can see, the new regulations do not significantly change the legal position; rather, they spell out the detailed factors that decision-makers and the courts should take into account when considering whether the deportation of an EEA national is in the fundamental interests of society. The new drafting approach in the 2016 regulations merely sets out a fuller range of circumstances and interests that fall within the term “public policy”. However, this range always fell within the meaning of that term, even under the 2006 regulations, so there has been no extension of the term.

Clearly, there is a very broad and varied array of circumstances in which an individual may pose a threat to public policy concerns, so it is quite impossible to draft in a way that specifically deals with each possibility but still provides comprehensive coverage in a single document that is not excessive in length. To ensure comprehensive cover in a manageable document means it is inevitable that some of the provisions are somewhat broad in nature. Although I am all for improving clarity and providing extra detail, having to describe in legislation every possible circumstance would be neither practically possible nor indeed helpful, given the number of provisions this would need and the changing threats that UK society faces.

The noble Lord, Lord Rosser, queried the sorts of persistent low-level offending that will be aggregated to qualify a person for removal. As is very much the case now, and as is required under both the 2006 and the 2016 regulations, all decisions taken on the grounds of public policy and public security will be made in accordance with the principle of proportionality, will take into consideration the personal circumstances and will be based exclusively on the conduct of the individual concerned. For this reason, there is no prescribed list of offences, nor a threshold for the number of offences which must be committed in order for a decision to be made on the grounds of public policy or public security to combat persistent offending—a matter which is of significant concern to the public.

I note the noble Lord’s concern about the level of scrutiny that Parliament has been able to afford these new regulations. I hope that the reassurances I have given as to the modest evolutionary rather than revolutionary nature of the 2016 regulations will serve to explain why, as was the case with the 2006 regulations and their very many amendments, the Government considered that the negative resolution procedure was the appropriate mechanism. The noble Lord also raised the issue of consultation. We of course consulted other government departments where substantive policy changes were made; for example, implementation of the Upper Tribunal case of Sala, removing a right of appeal from applicants seeking recognition as an extended family member.

I understand the reasonable point made by noble Lords that it would have been helpful if the guidance had been published when we laid the regulations, to assist their scrutiny. We did publish detailed guidance on GOV.UK regarding Regulation 9 when it came into force on 25 November, as the noble Lord, Lord Rosser, said. Detailed guidance on the remainder of the regulations will be published when they come into force on 1 February. However, I am afraid that we are not in a position at this point to provide additional information on the remaining regulations. The noble Lord also mentioned that the guidance on Regulation 9 relating to the genuineness of residence included several redacted sections marked “For Home Office Use Only”. As is usual with redacted sections of guidance, disclosure to the court will be considered on a case-by-case basis in accordance with the relevant procedural requirements or court order.

The noble Lord, Lord Rosser, said that the new, more specific drafting gives rise to concern that a different approach would be adopted across the country due to the terms being somewhat general and non-exhaustive. As I think I have mentioned, the new drafting substantially improves on the drafting of the 2006 regulations, and in the 10 years they have been in effect there has been no complaint about differing geographical application even though, based on the above argument, surely the risk was so much greater given that all this was covered in one sentence in the 2006 regulations but is now covered by many times that number of words.

Schedule 1 seeks to replicate the existing position in the 2006 regulations but in a clearer way by providing extensive language to describe the scope of things such as the fundamental interests of society in relation to public policy.

The noble Lord also asked what the procedure was for acting on these reports and at what level. A parliamentary team will bring the various reports to the attention of relevant units within the Home Office, and the directors of those units are responsible for ensuring that the Secondary Legislation Scrutiny Committee is considered and taken account of at the relevant time and in relation to future practice.

I hope that I have covered all points that noble Lords raised. I am sure that they will intervene if I have not.

My Lords, I shall accept that invitation. This is not a point that I have raised before and I do not expect the Minister to have an instant answer, but I make a plea. I would not have found the guidance had I not seen a reference to the date when it was published. Even then, it took me some time to navigate the GOV.UK website to find it, by which time I did not have very much time to look at it. There seemed to be no cross-reference to the number or title of the regulations, and I think the guidance may well cover more than just these regulations. I really think that that website could do with the uninitiated doing some mystery shopping on it.

I will certainly take that point back because, if the noble Baroness cannot find it, lesser mortals would really struggle.

In conclusion, the Government believe that the changes made in the 2016 regulations do not fundamentally change the legal position set out in the 2006 regulations and that the measures are proportionate. I hope with those words and with my explanation on the noble Lord’s questions, that he will feel free to withdraw his Motion.

I want to raise one or two points about what the Minister said. The response we have had from the Government is basically a repetition of what has been said in three letters from the same Minister, one of which I understand followed a meeting with the chairman of the Secondary Legislation Scrutiny Committee. I find it rather puzzling that the Government or the Home Office do not think it rather odd that, if their case is so persuasive and that in effect there has been no real change at all, they have been unable to persuade the Secondary Legislation Scrutiny Committee of that fact. Why does the Minister think that is the case? Could it not be that the Home Office has got it wrong and that it has been making changes?

I noticed in her reply at one stage the Minister said, “We have made some changes”. Did the Home Office ever think that maybe it is wrong and that the Secondary Legislation Scrutiny Committee is right? If we are at a stage where, after a report like this from the Secondary Legislation Scrutiny Committee, the Minister in the department concerned is still prepared to stand at the Dispatch Box when challenged and say, in effect, the scrutiny committee has it wrong and we have it right, it makes you wonder what kind of esteem the Secondary Legislation Scrutiny Committee is held in by the Home Office.

I wonder whether the Home Office is seeking to make any arrangements to offer to meet the committee to talk through this issue of whether there have been significant changes or not, and whether the committee is justified in the really quite serious criticism that it has made. I have not heard anything from the Minister to suggest that the department is willing to offer to discuss this with the committee as a whole.

The other point I would like to make is that the noble Baroness has said that it would have been better if the guidance had been available at the same time, but that does not answer the question of why it was not available. If the Government had found out that they could not produce the guidance, why not delay the introduction of the order? I have not had an answer to the question of why the guidance was issued only on the date the regulations came in. There has been no answer to that question at all. I simply ask it again: why was the guidance left so that it came out only on the day that the regulations were brought into force?

On the argument, what I quoted in my contribution were for the most part the views of the committee. It was the committee which said that ideally these definitions should be set out in the regulations. The Government’s answer, as I understand it, is that it would have made the regulations enormously long. Is the Minister able to give some indication of how mammoth the regulations would actually be if the definitions were spelled out rather than being left to guidance—guidance that does not even appear until the day the regulations come into force?

I would be grateful for a response to these points. I would be very grateful if I could have that response now, but I am not going to press the regret Motion—let me make that quite clear. If the Minister would rather do this in subsequent correspondence, I accept that. However, some answers are needed. This is about the relationship between the Home Office and the Secondary Legislation Scrutiny Committee. To my mind, the committee has made a pretty powerful case for saying that the Home Office has not acted in an appropriate manner in relation to these regulations.

My Lords, as a Member of your Lordships’ House, I believe that the scrutiny committees of both Houses should be taken equally seriously. I will take back the point made by the noble Lord about the Home Office engaging with the committee.

On the date of the guidance, I do not think that I can provide any further information at this point. On the length of the document, as I have said, the list would be quite exhaustive. However, I can provide the noble Lord with further detail in writing on all of these points in due course, if that is acceptable to him.

I thank the Minister for her reply and for being willing to respond to the points that I have raised by writing subsequently. I thank her too for her comments about the relationship between the Home Office and the Secondary Legislation Scrutiny Committee. Perhaps I may make it clear that I was not put up here by the committee to say that perhaps there might be a meeting or at least some method of talking things through, so I hope that I have not put my foot in it on behalf of the committee and that its members would welcome such a meeting, just as the Minister would.

Again, I thank the noble Baroness. I have attempted to put across the concerns of the committee, which I have to say that I agree with, and I am grateful to her for her response. I beg leave to withdraw the Motion.

Motion withdrawn.

House adjourned at 6.18 pm.