Examination of witnesses
Rt Hon Caroline Nokes MP and Glyn Williams.
Q1 The Chairman: Welcome, Minister, and thank you very much indeed for coming to give evidence to us. We are very glad to see you and are looking forward to the session. It is of course a public session and will be transcribed. We will send your staff the transcript afterwards in the usual way to look at.
We have two sets of questions on issues that have been before the Committee. The first is on migration to the UK for work, and the second is on future EU-UK asylum co-operation, and we will cover the two. We aim to finish the session, if it is all right with you, by 11.15 am, which I hope will give us time to get through quite a heavy agenda. We will do our best.
There are also some questions on a no-deal scenario. We had wondered whether that might have been off the table, but alas after yesterday’s vote it is still, I fear, on the table, so we need to ask one or two questions about that. The Government issued a paper this morning. I do not know whether it covers this set of issues. I do not think it does. I think it is about other aspects of no-deal, so we will not ask you about that.
Caroline Nokes MP: I think the paper that was issued this morning is on tariffs.
The Chairman: Would you like to introduce your colleague? I do not know whether you would like to make an initial statement or whether we should go straight on to questions. I should say that we are very glad to welcome a delegation of Slovakian MPs who are behind you and who are going to listen to us. I saw them yesterday and they are very welcome here this morning for the first half an hour or so. Over to you, Minister.
Caroline Nokes MP: Thank you very much. I had not planned to make an introductory statement. It feels a little flippant to say this, but of course before last night’s vote and when preparing for this session there was much about “in the event of a deal” and “we are working very hard for a deal”. We continue to work hard to secure a deal, although I recognise that last night’s vote was hugely disappointing.
With me is Glyn Williams who will be able to provide me with some of the detailed back-up, but I very much hope to be able to answer the majority of your questions. Sometimes when one appears in front of Select Committees, there is a very small audience, so I am delighted to have a delegation of Slovakian MPs behind me, although that is slightly daunting because I am now being judged by my peers and, indeed, by MPs from another EU member state, so I shall attempt to do my best.
The Chairman: I can see how they are reacting even if you cannot.
Caroline Nokes MP: Yes, I will remain innocent of the knowledge, will I not?
Q2 The Chairman: You are both very welcome. Perhaps I can move straightaway to the first question.
We have seen the White Paper on immigration that appeared at the end of last year. It proposes a one-year work visa for an interim period, starting from the end of the implementation period, or transition period as some of us call it, that is open to nationals of “specified countries”. It will be for all skill levels and “will not carry entitlements to access public funds or rights to extend a stay, switch to other routes, bring dependants or lead to permanent settlement”. It will also include a “cooling-off period”.
I have one or two questions about that. First, it says that it is open to nationals of specified countries. Could you indicate which countries it will be open to and which perhaps not? Is that clear?
Caroline Nokes MP: At the moment we do not intend to identify which countries specifically, but it would be reasonable to assume that they are countries with which we might have existing returns agreements and where we are conscious of their general levels of compliance with existing visa regulations.
It is really important to reflect that the White Paper talks about our future immigration system, a system that we will bring in from January 2021. There are enormous challenges in moving from the system of free movement that we have at present, which certainly has its pros and cons. One of its significant pros, and I am always the first to acknowledge this, is its extreme simplicity. We will be transitioning to a system where everybody who comes here for any period will require to leave to do so, so it is important that we spend time over the next year engaging widely on the nature of this temporary route, how long it should be there for and which sectors might seek to make most use of it.
You reference the cooling-off period, and I am conscious that that is a very significant aspect that remains part of our engagement, because it is important in any temporary route that we get it right and that we understand that different sectors might have different needs for different time periods, so while we have indicated that we are going to put a temporary short-term route in place, we hope to flesh that out over the coming year.
The Chairman: You mentioned the cooling-off period. Could you say whether it will accommodate seasonal jobs, because one of the issues that has concerned people a lot is the implications for jobs that depend on people coming in at certain times of the year to keep the industries going? Will it apply to them or will there be separate arrangements?
Caroline Nokes MP: I know you will be conscious that the Migration Advisory Committee reference the special case of agriculture, where it was absolutely of the view that you could make a case for a sectoral scheme. You will be conscious that we are moving into the pilot phase of our Seasonal Agricultural Workers Scheme, which is very limited in scope. I am the first to acknowledge that it is limited, but that is because it is a pilot.
I am conscious that agriculture is a sector where you might indeed expect to need seasonal workers, but it is not alone. The tourism and hospitality industries see a summer peak, and in retail and distribution there is the festive peak. I am conscious that different sectors have different requirements. We have proposed as an initial steer perhaps one year on and one year off, but I think you can make a very good and solid case for six months on and six months off.
We absolutely intend to engage with all sectors, particularly the NFU, which has not been slow in coming forward to me with its views. We were very fortunate in the evidence sessions for the committee on the immigration Bill, which recently concluded its Committee stage, that we had evidence from the NFU. It was very keen to emphasise the need for us to understand the particular requirements. I am very conscious, particularly in agriculture, that a season need not be six months and that people will move across different parts of the country either picking or planting different produce as the year wears on.
Q3 The Chairman: Thank you. That is very helpful. I have one final question on the same subject. I think the White Paper suggests that people who come into the United Kingdom on the one-year visa route will not be able to switch to some other form of entry arrangement, even if they want to do so because they want to upskill or increase their language ability. What is the rationale for saying, ”You come in and that’s it”?
Caroline Nokes MP: This is very much a transitional route to fill a gap between the liberal regime of free movement that we have for EU member states at the moment and the future system from 2021. We have been very clear that it should be regarded as temporary, and not a route to settlement, with no dependants and no recourse to the public benefits system.
I am conscious that people may indeed wish to change. It is perfectly feasible that they might come here for a few months and decide they wish to switch to a Tier 4 student visa—I am talking about our current system for ease of reference—or they may receive a job offer and wish to switch to Tier 2. I am very conscious that this is a short-term transitional route, and I am quite firmly of the view that we should not encourage switching. It is just a mechanism so that we do not suddenly have a switch-off and a cliff edge at the end of free movement. It is important as we engage on the White Paper that we understand the range of views there are, or might be, about switching.
The Chairman: If somebody is here doing a really good job and gets a good offer somewhere else, what happens? Do they have to go back and that is it?
Caroline Nokes MP: Under the current Tier 2 system, if we use that as our exemplar or our benchmark, you would expect somebody from outside this country with a firm job offer to apply through the Tier 2 visa route to receive their offer and come here. I do not think it is unreasonable, when we have had said that this is a temporary short-term route, that we expect somebody to return to their country of origin, which, let us face it, might only be an hour and a half away the other side of the channel.
The Chairman: Thank you very much for that.
Q4 Lord Haselhurst: My first impression of the arrangements outlined so far is that they are overly complicated. Minister, in your first answer to Lord Jay you gave some indication that you understood this complexity and that there might need to be variations to terms meaning one thing where you find, in the case of agricultural workers, that the season has changed and suddenly something different has to take place in practice.
How you can define medium-skilled exactly so that both employers and employees know their rights?
Caroline Nokes MP: Before moving on to medium-skilled, may I say a little about complication? I am very conscious of that. I have been in this role for some 14 months now, and on day one I talked to officials about how very complicated our system is. Notwithstanding that, I kicked off by saying that free movement is terribly simple, and it is, but on top of that, of course, we have the various tiers—Tier 1, Tier 2, Tier 4 and Tier 5.
It is a complicated system and it is difficult to navigate. You may well be aware that the Law Commission is currently undertaking a consultation on the simplification of the Immigration Rules. I very much welcome that, and apologies to those who have been in the Commons and know this, but when Eric Pickles, who is now with you in the Lords, arrived at the Department for Communities and Local Government, he was struck by the need to simplify the thousand pages of planning policy.
Let me tell you, I was struck by the need to simplify the thousand pages of Immigration Rules. This is ongoing work. I would very much like the new system, when we introduce it from 2021, to be much more streamlined, straightforward, and digital by default, and for it to be far clearer to applicants which route they are seeking to come in via.
I am conscious that I have rambled and not addressed the issue of medium skills. Currently, under the Tier 2 rules, those are roles reserved for people who are qualified to RQF level 6, so degree level or above. We are proposing that medium-skilled roles should be RQF level 3, which is the equivalent of A-levels or perhaps a BTEC. It is a lower skill level.
That is part of a recommendation put forward by the independent Migration Advisory Committee. Alongside that, it has proposed a salary threshold of £30,000. That has generated a great deal of comment. I welcome comment, because it gives us a starting point with which to engage with different parts of the UK and with different sectors. Medium-skilled jobs are exactly that, defined by the skill level, which of course is very easy for employers to quantify.
Lord Haselhurst: I take an interest in the hospitality sector, and I believe I am right in saying that over a quarter of a million people come almost exclusively from Europe to work in our hospitality industry, and this has been the case for generations. In my time as an elected Member of Parliament I never had any complaint from any constituent about what these people were doing here. They absolutely saw it as part of the tapestry of British life.
Is it not overcomplicating it to start distinguishing between low skill, medium skill and high skill in that industry, where the participants tend to see it as a career in a way that many British folk do not? A young person may come here to do quite a lowly job but that still requires skill, and see that as a gradation to a higher rank and finally perhaps to owning their own restaurant and so on. I do not see how we are addressing this and whether anybody outside politics really worries about it.
Caroline Nokes MP: I think people outside politics worry about immigration, and we saw the outcome of the referendum in 2016, in which undoubtedly immigration played a part. I am not going to say that it was people’s main driver, or their sole motivation, but we know that it played a part.
We have been very clear that post Brexit we will end free movement. The people you refer to in the hospitality industry have, by and large, come to work here via free movement rules, or at higher levels of qualification. Of course, they can come in from other nations but under the Tier 2 process, which is only for those at degree level and above, perhaps working in hotel management as opposed to very much on the front line of that service industry.
It is important that we emphasise the engagement that we are doing with the Employer Advisory Group. The hospitality sector is a brilliant example to use, if I may say so, because that is a sector that we know has been heavily reliant on EU labour over the past 20 or so years, and certainly it is one of the sectors with which we will be engaging via our Employer Advisory Group as we look at the future immigration system following the publication of the White Paper in December.
Lord Haselhurst: Is the employer in that sector not the best judge of the capabilities and skill levels of the people that he or she is employing? It is a gradation. Are they going to have to check every quarter or six months or something whether the various employees are here under the right label? It seems to me that we are putting a great burden on them and trying to solve a problem that does not really exist.
Caroline Nokes MP: Employers already have to conduct right-to-work checks on employees, whether they are from the UK or further afield, and that will not change. It is important, and much though we recognise there may be challenges, freedom of movement is going to end. The immigration Bill is already making its passage through the Commons and will be with your Lordships shortly, I hope, but we as a Government believe that we have an obligation to end free movement, so moving to a new system where there will be new structures and restrictions on people’s ability to come here is an inevitable part of that.
Q5 Lord Haselhurst: Turning to the cultural sector again, how do these definitions apply? What does medium-skilled mean in that context? There are very high-end people with enormous talent who may want to come here in response to the demand that their skills have created. There are also people who perhaps do not have quite the prestige but who have huge popularity—in the pop end of the business, groups appear, rise and fade and so on. How does this term “medium skill” apply in that whole sector?
Caroline Nokes MP: You are right to raise the issue of the creative sector. I would question whether this is the skill level that we would consider when looking at the creative industries in particular. Currently, Tier 5 is the route that we see many artists and performers use to come to the UK.
There is a wide range of routes. We give permit-free travel for those coming to festivals. There are permitted paid engagements for professionals coming for a short period to perform, for up to one month, or temporary work routes for those who are coming for longer. Tier 5 tends to be the route whereby professional artists, entertainers, musicians, et cetera, who want to carry out activities directly related to their profession, come in to the UK.
Certainly, I would reflect that in the creative/entertainment sector there are existing routes through Tier 5, which there are—I look to Glyn here—no proposals to change. It is important that we continue our engagement with DCMS, because issues have been raised with me over the last 12 months. I would point in particular to the Edinburgh Fringe, where issues were raised with me by artists who had found some of our existing routes challenging.
We continue to engage with the sector. At the Home Office we are perhaps not the most culturally aware when it comes to arts, but we have done proper engagement with our colleagues in the DCMS so that we understand the full range of cultural, sporting and artistic events that occur.
Lord Haselhurst: Who have the Government been consulting in the two sectors I mentioned, and are they relaxed about what is being proposed?
Caroline Nokes MP: In the hospitality and creative industries we have certainly been engaging with the DCMS. As I said, we have set up the Employer Advisory Group and there is a wide range of ongoing engagement.
Perhaps I can turn to Mr Williams, who will be able to provide you with further detail about the engagement that has already taken place with regard to the White Paper. I am conscious that we have a further nine months of this year of engagement to run. I am prepared to accept that my focus over the past couple of months may well have been Brexit and the immigration Bill, but once we have those settled—she says, smiling, you have to be optimistic—I have very much planned a summer of both regional and sectoral engagement. Glyn, did you want to provide some detail?
Glyn Williams: We have set up or are in the process of setting up five advisory groups for: employers; education; ‘crossing the border’; one we are calling national, which goes to the regions of the UK; and vulnerable groups. They will be standing advisory committees, if you like, that will consult.
Separately, we are consulting with different sectors and will go out to meet them at events and to speak at events that they are putting on for their members, for example, or to have private meetings with them. We met the food and drink manufacturing association. We have met construction, hospitality, retail, automotive, professional business representatives. I have a very long list here that it is probably not possible for me to read out to you. I am very happy to write to you giving chapter and verse on who we have met so far and who we plan to meet. We have an A3 schedule of planned meetings throughout the rest of the year.
The Chairman: That would be extremely helpful. I know Lord Ribeiro wants to ask a question on this, but we have had a lot of interest from the cultural sector, from musicians and others, which I discussed with Margot James at the DCMS. I am delighted to hear from both her and you about the importance of the departments working closely together.
Q6 Lord Ribeiro: The Government have accepted the Migration Advisory Committee’s recommendations that we introduce some medium-skilled workers into the arrangement and perhaps look again at the salary threshold of £30,000. When this was introduced, particularly within the context of the medical profession, there was a cap on Tier 2 visas of 20,000 or so.
We have a major need for doctors in the NHS. You have included in the level 3 qualifications laboratory technicians and senior care workers. What impact assessment has been done on the priority of what is needed? Do we need more technicians and more social care workers, or more doctors? What impact would widening this net have on our medical provision?
Caroline Nokes MP: There are two important points that I would like to make, and I probably will end up making more than two. We recognised last July that the 20,700 a year cap on Tier 2 visas was creating a pressure within the health service and our ability to attract adequate numbers of doctors and nurses. It was in July, I believe, when we lifted the cap.
Subsequent to that, we have seen a significant uplift in the number of applications from those working in those professions. It is always very dangerous for a Home Office Minister to try to remember a statistic off the top of their head, but when we were doing the net migration stats, which I think was a fortnight ago, we saw that there had been a 54% increase in the number of applications. I am not saying a 54% increase in the number granted but in the number of applications.
We have seen a welcome jump in the number of doctors and nurses coming here under the existing Tier 2 rules. The Migration Advisory Committee’s proposals are, as you said, for a £30,000 salary threshold but no cap, and that will mean that our NHS will certainly be able to access people without running into the cap that caused such problems for us last year.
I am not blind to the issue that there may well be many working in the health sector who do not reach that salary threshold. There is a lot of engagement going on. I have spoken regularly to the Royal College of Nursing and to my counterparts in the Department of Health and Social Care, and certainly in the field of social care there is a lot of concern about the ability to access adequate numbers of people coming in to work and the salaries, which we know are not, in the main, reaching £30,000. There is still some work and discussion to go on in that particular field. If I were to be completely candid, that would be where my main anxiety rests, because we know the high levels of reliance on EU workers coming to work in that sector.
Lord Ribeiro: Without making some adjustments to that salary level, I think you will be hard pressed to get senior care workers in.
Caroline Nokes MP: I think you are right. It is a point well made. It is a point that Caroline Dinenage, Minister for Social Care, makes. I try to work very closely with local government and it is certainly a point that both the LGA generally and individual council leaders have made to me over the last few months.
Q7 Baroness Massey of Darwen: Could I ask two linked questions? Will the new immigration system be implemented in its entirety in 2021, or will there be a phased transition process? Secondly, have the Government considered implementing some aspects of the new system during the implementation period, for example the tier 2 visa?
Caroline Nokes MP: I really do not underestimate the size of this task. I am very conscious that our immigration system is large and sometimes under pressure. We have a commitment to introduce the new system by January 2021, and it is absolutely imperative that the new route for skilled workers and temporary workers is up and running by January 2021.
I am also conscious that one of my main priorities, and I spent most of last year working on it, is the EU Settlement Scheme and the challenge of getting 3.5 million people through that system over the next couple of years. That has been our focus. I am going to touch wood and have done so consistently over the last year. It is important we reflect that, so far, the scheme is going well.
Since the opening of the third phase, the public beta testing, more than 150,000 people have gone through it. The volumes are large and I am conscious that much of our capacity over the next year or so is going to be focused on that, so I am not going to make any grand promises about phasing in new bits of the future system before 2021.
Q8 Baroness Pinnock: This is a question, from the different context of a no-deal scenario, on the European Temporary Leave to Remain issue.
The Government have said that EEA and Swiss nationals can enter as they do now and stay for three months. If they wish to stay longer than three months they will “need to apply for permission and receive European temporary leave to remain”, which would be valid for a further three years. That is the context, and I have a couple of questions on that.
What will happen in cases where people have applied for leave to remain but have not received a decision within the three months?
Caroline Nokes MP: I very much hope that we will not be in a no-deal scenario, but I have to reflect on last night’s vote and I am conscious that we may well find ourselves in one. We propose to use the infrastructure of the EU Settlement Scheme as the mechanism by which people will apply for European Temporary Leave to remain. So far under the EUSS, the vast majority of those—I do not have the percentage, but I think it is in excess of 75%—who have applied for settled status have been granted it within a matter of days. So far so good, but I am conscious that we are talking about large numbers of people going through the scheme. There may well be significant applications for European Temporary Leave to Remain.
As part of our provision for that, on Monday night we debated the SI on European Temporary Leave to Remain down the other end of the corridor, and that statutory instrument will be in the Lords I think next week. I am conscious that we have to make it a very simple system, so, similar to the EUSS, it is about proving your identity and confirming that you do not have any criminal convictions, unlike the EU Settlement Scheme where people also have to demonstrate their residence in the UK over the previous five years, or to accrue the years building up to five years.
Of course, with European Temporary Leave to Remain there will be no such requirement on them to demonstrate that, because they will only have been here for three months and it is about the future 36-month grant, not about any evidence that they have been here previously, so it is a very slim system.
Baroness Pinnock: So you are saying that it will count towards the five-year qualification.
Caroline Nokes MP: That is in a no-deal scenario. You always have to focus on that. In a deal scenario, it would count towards the five-year settled status. In a no-deal scenario, no, it will not. It is temporary leave to remain, and when they reach the end of those 36 months they will have to apply to stay under the future borders and immigration system that will come in from January 2021.[1]
Baroness Pinnock: The final question is about the enforcement and compliance mechanism for the ETLR system.
Caroline Nokes MP: I am very conscious that this is light touch. This is not meant to be a very difficult system. I am conscious that we are building a bridge from free movement to the future immigration system. The alternative to having European Temporary Leave to Remain would very much be to preserve free movement, yet we had a clear steer from the British public that they do not want us to preserve free movement, so we had to have something in the interim once the immigration Bill is passed and we have ended free movement. We will have a transitional period.
I am very conscious that at the end of the transitional period, building up to 2021 when the new immigration system comes in, we may well have a large number of undocumented people in the country. European Temporary Leave to Remain is a route towards that. We are asking people to register, but there will be no additional checks for landlords or employers. They will simply have to ask to see a new EU ID card, or preferably a biometric passport to check that somebody is who they say they are, and they are an EU citizen.
However, we are asking them to apply, in many ways, trying to establish the concept that we no longer have free movement. We have chosen not to apply the full rigour of the compliance environment to them or to employers, but if they overstay, or if they do not have leave to remain and then make an application under the future system, of course we would be aware of that.
Baroness Pinnock: It sounds awfully complicated.
Caroline Nokes MP: I am a fan of free movement. I have always been very clear about that. It is very simple and straightforward. We are ending free movement. That is what we have chosen to do because of the very clear steer we were given by the British people in the referendum of 2016. It is more complicated. There are no two ways about that, but it is in many ways, as I have said, building a bridge to a future system where everybody who comes here and wishes to stay and work will be required to have leave to do so.
Q9 Lord Soley: My question follows from that set of questions on the no-deal scenario.
The day after we come out without a deal, British citizens will be going to European Union countries, and we would like to know if you are seeking reciprocal arrangements, because EU citizens will also be coming here. Are you having any negotiations or discussions on that?
Caroline Nokes MP: We have set out a very generous offer for EU citizens who are already here, and we are making provision for those who may well come here after our exit. That involves visa-free travel for people who wish to come on holiday.
The EU has reciprocated on that. In terms of post-exit arrivals, the European Union has proposed that UK nationals should have visa-free access for short-term visits to the EU and the other Schengen states for 90 days in every 180 days, so for three months in every six, which would cover tourism activities or meetings but does not provide a right to work.
Negotiations with the EU on the issue of UK citizens who are already living abroad is very much a DExEU and FCO lead rather than us. But following the Costa amendment—I always get the date wrong as to whether it was last week or the week before—the Secretary of State for DExEU wrote to all his counterparts across the EU seeking further urgent discussions with them about the rights of UK citizens already in those states.
We can honestly say that in a no-deal scenario we are making a significant unilateral offer to EEA nationals and Swiss nationals that, subject obviously to parliamentary approval, they will receive automatic leave to enter on arrival, and after three months we expect them to apply for temporary leave for up to a further 36 months.
Lord Soley: I understand that, but on the immediate day after we leave British citizens will certainly arrive in those European countries—i.e. not those already there or European Union citizens coming here. If someone here gets up the day after exit and goes to the European Union, how might we be able to reciprocate the rights of people making that exchange literally a day or two after we leave?
Caroline Nokes MP: As I said, there will be visa-free travel for those who are tourists. UK nationals going to EU member states who wish to stay longer than the three months in every six that I indicated will need to apply to those countries either for a residence permit or a long-stay visa that might be issued by those countries.
Lord Soley: They would have to do that almost now and they will have to assume there is no deal because they will not be able to do it on the day they go.
Caroline Nokes MP: In the event of no deal, they would still be entitled to visit for three months but not to work, and they would be allowed to conduct meetings, but if they wished to move there permanently they would be very much in the hands of those member states to seek the appropriate permissions from them.
This is an issue, as I said, on which the FCO and DExEU have made representations to their counterparts, but it is very much in the Home Office’s hands to make a unilateral offer to EU citizens. Unfortunately, I cannot legislate for other member states.
Lord Soley: No, but what is so crucial here is that there is some reciprocal agreement between the separate countries of the EU and the UK, otherwise I am not quite sure what message you are sending to people who decide, very often at short notice, to go to Europe.
Caroline Nokes MP: I would entirely agree with you, and I would very much like to see the EU to reciprocate with the same generous offer that we have made to its citizens.
Lord Soley: Are you having discussions about that?
Caroline Nokes MP: As I say, that is a DExEU and FCO lead rather than mine at the Home Office. I have to say that over the last year, whenever I have met my counterparts from EU member states, whenever I have met ambassadors, I have been very keen to emphasise the great amount of effort the Home Office is putting in to establishing the EU Settlement Scheme, and the work that is currently going into the various no-deal statutory instruments that I am trying to get through the House, which make absolute provision for EU citizens coming the other way with 36-month temporary leave to remain.
I continue to make the point, and Foreign and Commonwealth Office Ministers make the point, as indeed does DExEU, and we are conscious across government that we have it in our hands to make a unilateral offer and to apply pressure on the other EU member states, and, indeed, on the European Commission, to provide the reciprocal offer that we would like to see.
The Chairman: Another reason why no deal is quite clearly such a very undesirable outcome.
Caroline Nokes MP: A bad thing.
Q10 Lord Ricketts: Finishing on that, of course UK citizens moving to the EU may be confronted in a no-deal scenario with 27 different regimes. The idea of a single EU-wide regime is not going to work. It is one more complexity.
Staying on the no-deal planning for the moment, you said at the beginning that you were in favour of simplification, and we all agree with that, but totting up the different ways in which in a no-deal scenario an EU citizen could be in this country after no deal—indefinite leave to remain, settled status, pre-settled status, a transitional one-year visa, European Temporary Leave to Remain for three years, or to be here for three months without need of leave to be so—I think we made it six different statuses, but we may have missed some.
Caroline Nokes MP: I am not going to argue with any of that.
Lord Ricketts: By any definition, that is not a simple system for the Home Office to implement and administer, or for employers, or indeed for individuals. Although you said that you are in favour of simplification and that free movement is ending and we have to accept that, is it reasonable to try to impose this system with six different statuses for individuals, which surely can only lead to confusion and possibly to a great deal of innocent error, which could put people in jeopardy if they overstay on some of the thousand pages of rules on this?
Caroline Nokes MP: I think I can add a seventh. You may have said this, and I may have missed it, but of course it is perfectly feasible that an EU citizen could be here post-exit, having come here before exit and not yet having applied for pre-settled or settled status. They would be absolutely entitled to be here.
That is why it is absolutely imperative that we have a transitional period in which we accept that EU citizens may well be here perfectly legally and legitimately, with no ability to evidence their EU status other than to hand over their EU passport, and why we should absolutely ensure that we are not enforcing against them until we get to the end of the implementation period, by which time we expect those who have come here prior to EU exit to have achieved their settled status or pre-settled status and be able to evidence it. It is absolutely a proportionate and light-touch regime.
In the Home Office we acknowledge that free movement has given people the ability to come here for many decades, to live, to work, to rent property, to raise their families, with very little interaction with the state, and I am very conscious we have 3.5 million EU citizens who we have to get through our settled status scheme, and that will be a challenge.
You are absolutely right to point out the complexities. That is why it is absolutely imperative that we do not have a hard cut-off on the morning of 30 March whereby we start enforcing against people and demanding to see their status, because I, officials and we across government acknowledge that this is going to be a challenging period. Of course, these are people. For citizens it is going to be unsettling. There is no doubt about that.
Lord Ricketts: There are individual cases, and endless complexities for families and dependants, and everybody is different in a way. There is the risk of a bit of a cliff edge on 1 January 2021, I would have thought, because even after two years, if you have 3.5 million people through the settled status process and you are going to use similar instruments as for European leave to remain, there could be massive numbers of people who are desperate to regularise their status, and it may not be finished by January 2021.
Caroline Nokes MP: I am now going to lapse back into a deal/no-deal situation. In a deal, people who come here post-exit will still be able to go through the EU Settlement Scheme and accrue their years, and we intend to give them until June 2021 to be able to go through that scheme, so an additional six months.
In the event of no deal, the cut-off date comes back to 31 December 2020, with the introduction of the new immigration system from January 2021. As I said earlier, I am not oblivious to the scale of that challenge, but it is important that even in a deal scenario, June 2021, and a no deal scenario, January 2021, we have a proportionate approach to enforcement and give people the opportunity to go through the system if they can demonstrate to us that there are good reasons why they have not done so.
I am particularly alive to a range of scenarios. I am going to categorise them all as vulnerable, but there may well be reasons why people with learning difficulties, children in the care system, children generally have not gone through.
Lord Ricketts: Elderly people.
Caroline Nokes MP: Elderly people, absolutely, particularly elderly people in care homes and those who perhaps are suffering from dementia. It is important that we still have a mechanism in place for them to go through the process of settled status. We have provided £9 million-worth of grant funding to voluntary community groups and charities that already have a track record of working with the vulnerable, so they can help them through the process. Particularly for children in the care system, there is a great deal of work to do with local authorities in ensuring that they are providing the assistance to children for whom they are responsible.
It is an enormous challenge, but we will move to a situation where we have one single immigration system regardless of nationality and where everything will be applied equally, thus removing one level of complexity that we currently have.
Lord Ricketts: Thank you very much, and good luck with the challenge.
Caroline Nokes MP: Thank you.
Q11 Lord Kirkhope of Harrogate: Speaking as a former Immigration Minister, I understand your problems. The issue of complexity that we have touched on in the last few questions is certainly quite important. In recent years, the complexity that I, and others around my time, had to handle has massively increased, partly as a result of the Government’s determination to reflect the need to particularise and to be fair to everybody in the categories concerned.
Of course, the basic precept of immigration being fair but firm is very important, as are the transparency issues. I am deeply concerned about this. Lord Ricketts very correctly mentioned, and you have added to, the list of different categories. The paperwork issue here and what will be required all sounds very simple—“We will only require”—but that is the limit in the number of bits of paper we might need. We have to be quite clear to everybody concerned what it is we require from them. We want to publicise in the right way to the right targeted audience precisely what is required. We want to prove that we are not being discriminatory in the way we are behaving.
What is concerning me about it is the large number of European people this country has depended on for very many years who are now suddenly subject to what I would broadly call ‘registration’. European history teaches us that registration of categories is a very dangerous area to be in, particularly for European citizens and perhaps those who have been in this country many years.
I am deeply disturbed about this. I was one of the last Ministers to draw up an ID card preparation operation, which was then stamped on by politicians, as they tend to do, but I wonder whether we are reaching a point here where it would be simpler to have an ID card for everybody so that everybody has to comply with exactly the same rules, rather than simply Europeans, however you define ‘Europeans’—not including us, of course.
I would like to ask you to react to that and to react to one other thing. If we do not get a deal, what is the Government’s proposal for moving the date for implementing a new system? Will it be changed? Because of the circumstances, will it inevitably be brought forward, for instance? If so, do you really have the resources and the ability to do that and to maintain those very ideas of fairness and transparency in what you are doing?
Caroline Nokes MP: Apologies if I drift off into the anecdotal just temporarily, because the issue of ID cards has certainly cropped up, particularly in my conversations about the 3 million, many of whom come from EU member states where they are perfectly used to having ID cards and see no problem with them. We are from a different culture where ID cards have never been the British way, although at times people can make quite compelling and interesting arguments to me about them.
Here is where the anecdote comes in. You referred to having been a former Immigration Minister. When I was first a junior Minister, it was in the Department for Work and Pensions under a Secretary of State who had also been an Immigration Minister and who is also, I would say, perhaps the foremost opponent of ID cards in my party—Damian Green. I always say that I grew up politically at the feet of Damian, so I feel obliged to oppose ID cards on principle.
However, it has been very apparent to me over the past few debates on immigration in the Commons, and evidence sessions before the immigration Bill committee, that there is a growing body of opinion on this. I cannot venture into the Commons without somebody screaming at me, ”Isn’t it time you introduced ID cards?” It is not our policy and it is not what I would wish to do, but certainly in the case of EU citizens who might in their home member state have been used to them, I can see that there is some argument in favour.
I have completely forgotten your last question. It was about the complexity of introducing the system in the event of a no deal and whether we will have the capacity to do it by 2021. That is almost the direct counter to the question earlier as to whether we could phase bits in. Absolutely, we have to introduce this by 2021. We have set out very clearly in the immigration White Paper when we expect this to happen. We are undoubtedly, without wishing to sound like an “X Factor” contestant, on a journey towards that.
One of the first steps, of course, is the current immigration Bill, which turns off free movement. This is why we have had to introduce, in the event of no deal, which I do not want to happen, the European Temporary Leave to Remain as a pathway towards the future system. Once the future system is in place, as I said earlier, I wish it to be more simple, straightforward and streamlined, and I would like it to be digital by default. They may sound ambitious aims, and I do not underestimate quite how challenging it will be to get there.
Lord Kirkhope of Harrogate: May I add that, from your own evidence to another Committee, about 80,000 people in this country currently have to report monthly because of various issues regarding their immigration status? I think your latest information was that 600 or 700, or something like that, are simply not reporting at all and the Home Office is not able to catch up with these people.
It seems to me that with the complexities and this registration process, although we have had other presentations from the Home Office and others as to how straightforward and simple it all is, unless the people who are going to be subject to it—the European citizens who are here—fully understand it and it is put across in a way that is sympathetic and understandable to them, this is not going to work.
In other words, you are going to get a lot more people who will be what you could call ‘illegal’, which would be unfortunate in the extreme, who will be outside of the system, as it were, and will have to be chased up with resources that presumably you do not have.
Caroline Nokes MP: It is important to emphasise some of the work that we are doing with diaspora communities. Again, I realise that all stats come with a health check, but I was very struck when we looked at the initial figures from the third phase of public beta-testing of the EU Settlement Scheme how obvious it is that some nationalities are engaging with this at a much higher rate than others. While I am not going to give you the numbers, it is very clear that Romanians are going through this phase in a disproportionately high number compared to other nationalities.
We are working very closely with the embassies and the media from member states from which there are high numbers, such as Poland and Romania. We think there are in the region of 1 million to 1.1 million Polish citizens and somewhere between 400,000 and 500,000 Romanian citizens. Those two nationalities are here in large numbers. It is quite obvious that we need to look very closely at how well we have done with engagement with Romania and why there has been a bigger cut-through there so that we can translate that to our conversations and the work we do with the other—I was going to say 27, but of course it is 26, because Irish citizens will not have to go through the settled status scheme. I think that adds an eighth group to the ones previously mentioned.
It is important that we step up our communications, which we intend to do from the end of the month. Of course, the EU Settlement Scheme does not go fully live until 30 March, at which point there will be the additional postal route to apply through as opposed to simply the digital route. Currently, well over 150,000 people have gone through this last phase, where they have still had to pay fee despite the fact it will be refunded to them. We have seen big numbers engaging digitally, and I very much hope that is the route the majority will choose to use. I am of course alive to those who will need assisted digital and those who will not have the capacity to use digital at all, and I referenced the £9 million-worth of funding available to vulnerable groups.
You are right to point out that it is a big group. It is also right that we reflect on what enforcement activity there should not be, to be quite frank, until such time as we are confident that the vast majority of people have gone through the EUSS and achieved their status. It would be wrong to categorise the Home Office as being in any way complacent. It is an enormous challenge and we must adapt and reflect on the sheer scale of it.
The Chairman: I think we would all agree with the last point. We will move on to asylum co-operation, if we may.
Q12 Lord Soley: You probably do not want to know this, Minister, but I still have my ID card, having been a pre-war child. Following Lord Kirkhope’s significant experience you might like to borrow it some time and reconsider the whole system.
I want to ask you about the asylum issue and whether it is the Government’s intention to follow the Dublin system and to work with the European Union on maintaining the Dublin system for asylum seekers?
Caroline Nokes MP: I am now going to lapse back into deal/no deal territory. If a deal is secured, we will remain part of Dublin III until the end of the implementation period. I am sure you will have heard from other witnesses who have come before you that we have already opted-out of Dublin IV and indicated that we do not intend to take part in it. It might be a good few years off before Dublin IV is fully introduced, there being some conflict, complexity and discussion among the EU 27 about the responsibility for sharing that mandatory distribution.
Once we leave the EU, our future co-operation with the EU will undoubtedly be different to our current co-operation. Aspects of Dublin have been very useful to us. Equally, it would be quite fair to comment that Dublin does not work perfectly, and we are very conscious that since the significant influx into some EU member states following the migrant crisis in 2015, particularly Greece, it has been impossible to effect returns to Greece. You only have to look at the numbers on Dublin to know that, where requests are made, returns do not necessarily follow. It is a long way from the requests that are made that you see returns.
There are some key principles of Dublin that we would look to replicate. We will want there still to be a returns mechanism to other EU member states. It is well established. Also, of course, we will want there to be the ability particularly for unaccompanied asylum-seeking children to reunite with their family to be able to have their claim considered alongside their families. There will be parts of Dublin that we will wish to replicate, but there are certainly some challenges to it.
Lord Soley: Let me make sure I understand the procedures you have in mind. If we come out with a deal, under the political declaration you will be able to look at ways of co-operating and using the Dublin system where appropriate.
Caroline Nokes MP: And we will stay in Dublin until the end of the implementation period, so until December 2020.
Lord Soley: If we come out without a deal, will you replicate the Dublin system and, again, over the following period try to work out a system that co-ordinates with the EU, because there needs to be some co-ordination on this?
Caroline Nokes MP: As Glyn has just said to me, we cannot replicate it unilaterally, so it is blindingly obvious that if we come out without a deal we will still wish to work with our EU neighbours on the issues of asylum, migration, returns and family reunification, but we will not be able necessarily to negotiate with the EU as a bloc, so we may well need to have to work with individual states bilaterally.
I am very conscious, and you cannot not be—Lord Kirkhope has also had the role—that migration does not happen simply one side or other of the channel; you have to look at whole-of-route migration. Whether it is the western route through Africa or the eastern route, we have to be able to work with partners along that whole journey, and outside the EU undoubtedly that will be harder for us.
The Chairman: Are you talking to other countries now about what might happen in a no-deal scenario on asylum co-operation? Is that part of the contingency planning?
Caroline Nokes MP: You will be conscious that we already have in place with France the Sandhurst treaty, which was signed in January 2018. At the moment, we talk very closely with France in particular. We will have to strengthen our reciprocal agreements with France and work together with it. I will turn to Glyn here, because we also talk to Ireland on this issue, but I am conscious that there are restrictions from the EU as to who we can and cannot talk to bilaterally at the moment.
Glyn Williams: At the moment, it is the Government’s policy to pursue a deal, not a no-deal, and other member states do not want to talk to us specifically about a no-deal because that is not their policy either, so the dialogue is about a deal. We have heightened bilateral relations with countries such as Ireland because of the common travel area that we need to manage jointly, so we have regular meetings with them, and with France because of the juxtaposed controls and everything that is going on in Calais and the issue of small boats in the channel. There are lots of discussions with those countries.
In the so-called Chequers White Paper that was issued in July, there is a section on asylum and illegal migration, where we make quite clear that in the event of a deal the UK would like to negotiate a future arrangement after the end of the transition period that would continue to try to manage migration in the European space in a co-operative way. That would include FRONTEX co-operation, for example. It is doing a lot in the Mediterranean at the moment. It would include the management of asylum and secondary movements of asylum seekers. We are suggesting to the EU that we are willing to have a discussion with it to reach an agreement to perpetuate one way or another the current Dublin arrangements.
Obviously, there are different ways of doing that. We hope that in a deal, in the context of the political declaration about the future arrangements, that would be on the table and it would be a willing participant with us to come to some arrangement. In a no-deal, that is different. We do not know what the positioning of the EU would be as a collective on that matter and whether it would be prepared and willing to negotiate something with us as a collective or whether we would be talking to individual member states. That is a different matter.
Q13 Baroness Janke: Following on from that, what co-operation on mechanisms for the relocation of asylum seekers do you anticipate? You say that you are talking to other countries, but my experience is that conversations about accepting resettlement of asylum seekers have not always been particularly cordial, certainly with France. I have visited some of the asylum seeker organisations there and they do not feel they are having very much of a dialogue with the UK on this. Again, presumably you will want to answer in the event of a deal or in the event of a no deal where circumstances might be different.
Caroline Nokes MP: I am not sure I am going to say deal or no-deal, because of course this is part of the Dublin IV mechanism and the mandatory or voluntary relocation. We have said as a Government from the outset that we would not opt-in to Dublin IV because of the specific section on responsibility sharing.
There are very grave reservations about how successful that would be, in any case, in curtailing or preventing secondary or tertiary movements around Europe. We have said consistently that we will not take part in that. However, I think it is also fair to comment that when it comes to formal resettlement programmes as opposed to asylum, the UK has very much been at the forefront. Under our VPRS scheme, over 15,000 vulnerable people from the MENA region have been re-settled, and over the last five years 26,000 thousand family reunification visas have been issued, not to mention the work that we continue to do with unaccompanied asylum-seeking children and the 4,500 or so of them we currently have in local authority care in the UK.
Baroness Janke: We did a report on this and there were quite a lot of recommendations for improvements here. Certainly, the evidence has been that the Home Office has not been particularly helpful on resettlement and reuniting families. Presumably this will get worse, will it?
Caroline Nokes MP: I think it is unfair to categorise it as “It will get worse”. I am very conscious of the number of Private Member’s Bills we have in both your House and ours on family reunification. I would also like to state quite firmly that we take the view that children should not be able to sponsor their parents. We do not want to encourage children to undertake very perilous journeys. Our position is not going to change on that, but, as I said, 26,000 family reunification visas have been issued.
There are areas, particularly perhaps in the area of adult children, that are worthy of very close scrutiny. Of course, I am very conscious that the VPRS is reaching its conclusion. We always made a commitment to 20,000 by the end of 2020. We are at 15,000 and will reach the 20,000 by the end of next year. The pressure I am coming under currently from NGOs is, “What happens next?” That is a really important and valid question, because we have done fabulous work on formal resettlement programmes, and I want to see that work not diminish, not tail off, not lose the expertise in the routes of referral.
I also recognise that this work has to continue hand in glove with local authorities, which played such an important role in indicating to us over 2015 how many families they felt they could accommodate. I am firmly of the view that it is much better to work with local government than to try to impose things upon it. That is the direction of travel for the future.
I absolutely take the point. When it comes to the cold hard statistics on the number of asylum applications in the UK, I would argue by dint of sheer geography that they are naturally lower than those you might see in some of the other member states because it is self-evidently much harder to get here.
Baroness Massey of Darwen: Up to what age do you define children?
Caroline Nokes MP: The Home Office would regard a child as somebody under the age of 18. I saw you smile, and I think you are going to pick me up on this, because I am very conscious from our own families as to who would regard their 19-year-old or 20-year-old as not being their child any more. I have a 20-year-old child.
One of the areas I have a specific interest in is adult dependent children. It is an area that we need to consider very closely, particularly—apologies gentlemen, although you might expect this—when they are girls and might be in very vulnerable situations.
Baroness Janke: May I make one point? In our report on unaccompanied migrants we heard evidence from young people who had been subject to unbelievable processes to establish their age. Many of them had come from places such as Libya where they had seen their friends and colleagues shot. The lack of sensitivity, the periods of waiting and the processes that they went through were very worrying for us. We felt that this was a whole area that was not receiving a great deal of attention.
Caroline Nokes MP: I think it is unfair to say that it is not receiving a great deal of attention. I was in Greece last summer on one of the islands in a hotspot, and I also went to a shelter for unaccompanied asylum-seeking children. I met some of the young people there and some of the agencies working with them. One of my big concerns, particularly when it comes to Dubs children—and I will touch briefly on it—is the length of time it sometimes takes for the child’s best interests test to be concluded.
I am very conscious, and we all know this, that many of the unaccompanied asylum-seeking children are boys between the ages of 15 to 17. If those best-interests tests take too long when you are already 17 years old, you are tipped over into being an adult. That is of huge concern to me and certainly something I press the UNHCR on as to how we can do them faster.
One of the challenges with the Dubs amendment and the 480 commitment that we made is that sometimes the best-interests tests are taking too long to get the referrals. Undoubtedly, we have a challenge here with local authorities and the National Transfer Scheme in finding placements for children.
There is also the challenge of the specified date, which we moved last January as part of Sandhurst and then did away with completely in December. I am absolutely determined about this. You cannot go to events hosted by Lord Dubs, or to an event I went to hosted by Safe Passage UK at the tail end of last year, and not be affected when you listen to the tales of young children. I think they were broadly Syrian asylum-seeking children. I say children, but these were teenagers who had come to the UK and who stood on a stage in front of about 1,000 people and spoke with enormous passion and were so articulate. That is why I am absolutely determined that we get to the 480 as soon as we can. That is why since I have been Minister there have been two date changes.
You made a point about the age testing that some may have been through. This is a really difficult area. Many of us will have seen the recent press coverage of a case of an asylum seeker who was outside the age at which we might reasonably consider someone to a child. As the Minister I feel under pressure from both sides. Of course, I want to get the Dubs 480, but at the same time I recognise there are challenges with age, in some instances, and the fact that, sadly, with any asylum system people will occasionally try to use it fraudulently.
Lord Ribeiro: We took evidence and posed the question, “Would the Government look again at the use of X-rays?” I know there are those who say that there are problems and that it is invasive and so forth, but there is evidence to show that by looking at the fusion of the shoulder joint you can identify whether somebody is over 19 or under 19. When people come in who clearly are 20 saying they are under 18, you can be fairly clear by doing that test. Have you looked at this any further?
Caroline Nokes MP: Interestingly, I had a conversation yesterday with one of my colleagues on this very subject, who was absolutely adamant that we had to introduce X-rays. There are health issues in using X-rays when there is no medical reason. It is quite intrusive, although possibly less intrusive than demanding a thorough inspection of someone’s teeth.
Lord Ribeiro: Anybody coming to this country would have to have as a health check a chest X-ray to make sure they do not have tuberculosis, or whatever it is.
Caroline Nokes MP: That is a fair point well made. Certainly, it was raised with me yesterday. I am reflecting on it at the moment. Without wishing to be in any way flippant, I sometimes think that children are the best identifiers of who is not a child. I have always said that you should stick an 18-year-old behind any bar because they will be the first to identify which of their peers is under 18 and which is over. It is obvious in some cases that it has been children themselves who identify people who are not of their age.
Q14 Lord Best: My question was about the reunification of family members, but it has already been asked and pretty fully answered. There is just one outstanding aspect, which is there has been the judgment by the Court of Justice of the EU relating to allowing parents to join their children. Has that court case made any difference to your views?
Caroline Nokes MP: It would be fair to say that we do not regard the court case as binding on the UK. It was the result of the general Directive on the right to family reunification dating back to 2003 that we opted out of.
More broadly, I have given you the commentary on family reunification. We do not wish to encourage children to make dangerous journeys, although obviously I am looking closely at all the Private Member’s Bills currently before the House.
Q15 Baroness Janke: I wanted to ask about access to Eurodac. At present, only member states and non-EU Schengen-associated countries have access. Are you anticipating barriers in joining this? If so, how are you looking to overcoming these difficulties? We have been advised that the UK would need to have access to various quality of data but that that will take some time to achieve. What are your plans?
Caroline Nokes MP: It is fair to comment that access to Eurodac would be regarded as optimal, although you are absolutely right that no other third country has access to it, so we would have to negotiate that with the EU.
Obviously, when we leave the EU, we are a non-EU and non-Schengen country, which puts us in a different situation to Norway, Iceland and Lichtenstein. It gives us huge challenges. I would very much like to see us with access to Eurodac, particularly in the area of law enforcement. I suspect that this is going to be a difficult negotiation but one that I would hope would be successful.
Baroness Janke: Are you looking to pursue adequacy?
Caroline Nokes MP: We would be required by the EU to be considered adequate if we were to be granted access to Eurodac. There are mutual benefits to both us and the EU to allow us to continue, but I do not pretend that it will necessarily be an easy negotiation.
Baroness Janke: Is that a priority at the moment, because again the Information Commissioner told us that to get an adequacy agreement we would need to go through quite a few thresholds, and recent court cases would again make that less likely? She was talking about the whole area of data. Is the Home Office working on that?
Glyn Williams: Across government, data protection is a DCMS lead, and there would be a negotiation with the EU about the general adequacy finding. Obviously, we are in Eurodac now. We have accepted all the EU standards and implemented the General Data Protection Regulation, and so on, so in principle our viewpoint is that we meet the standards. You do not necessarily need a general adequacy finding anyway. You can have individual findings under the relevant regulations for particular types of data exchange as well, so I think we would want to pursue both those channels.
Access to Eurodac is not just going to be about them being satisfied with our data protection standards. It will be also about their willingness to allow the UK, even in a deal, after the transition period to access databases and data exchange mechanisms when the UK is not a member state. That is a point of principle that we are discussing with them.
There are many such databases in the security field, and our position is that it is a win-win for the UK and the EU, and we would want to continue on both sides, whereby we give the EU information and it gives us information.
Baroness Janke: Thank you.
Q16 The Chairman: I have one final question on asylum co-operation in the event of no deal. One of the things that concerned us a bit is the impact of such a scenario on separated families. What action have the Government taken to ensure that families awaiting Dublin transfer decisions are not stuck in limbo in a no-deal scenario?
Caroline Nokes MP: I believe that we laid a no-deal SI that will cover exactly this point last week; apologies if I get this wrong, because there are so many of them. It is an affirmative SI, so it will be debated in both Houses. It will come into effect in the event of no deal and ensure that family reunification cases that are already in the system—so those that have been accepted by us as well as those that have been referred by us—will continue to be processed in the current way.
I think this shows good will on the part of the UK that we want to ensure that no individual who has the right to join a family member will be stuck in the sort of limbo that you have outlined. If a take-charge request has been raised prior to exit day, 29 March, it will continue in the event of no deal. That will rely on the willingness of other member states that are the partner in this to continue in the same way. That is our intention.
I very much hope that that SI will pass when we debate it next week, and obviously it will follow on to the Lords after that.
The Chairman: Thank you, Minister and Mr Williams, for the help you have given us. It is quite a very busy time one way and another, so thank you very much for coming to give evidence to us. That has been extremely helpful.
