27
Examination of witnesses
Zoe Bantleman and Barry O’Leary.
Q22 The Chair: The meeting is now being recorded and public proceedings are beginning. Welcome to this second evidence session of our inquiry into settlement, citizenship and integration. We are delighted to have two eminent witnesses before us. Before we kick off, I would be grateful if they could both introduce themselves.
Zoe Bantleman: I am the legal director of the Immigration Law Practitioners’ Association.
Barry O’Leary: I am a partner and solicitor at Wesley Gryk Solicitors, and a director of Micro Rainbow.
The Chair: Thank you very much. Can I just kick off by simply trying to get an understanding, given everything that we have heard from the Government, of who you think is going to be affected by the changes? There are certainly some areas where there seems to be some uncertainty. For example, the Government are saying that they are going to consult about the Armed Forces and their families. On the other hand, in the documentation, it says that the Armed Forces are not going to be affected by the changes. We have changes in relation to bereaved partners, victims of domestic violence and abuse, children and young adults who grew up in the UK without immigration status, and so on, where we are very unclear about what is going to happen.
We are also interested in the issue of children and child poverty, and whether these are going to affect the number of children in poverty in this country, given that we already know that about a third of children in poverty at the moment come from immigration families of one sort or another.
It is a simple question. What is your understanding of who will and will not be affected by this? Within that, perhaps you could also tell us what is happening to the Irish. That seems particularly confusing.
Zoe Bantleman: I am happy to start with who, one would hope, will not be impacted by the proposed changes. At the outset, I just wanted to make one quick remark. These proposals are to be fairly and publicly consulted upon, so I would hope that there is openness from officials and Ministers to properly consider the responses to the consultation, given that a consultation should take place when proposals are at a formative stage. The results of the consultation should, of course, also be conscientiously taken into account.
The Chair: Could you explain why you are saying that? Do you think that officials do not take consultations into account?
Zoe Bantleman: No. I am saying that these are good consultation principles, and the principles that must apply. Why I am worried about it is that the current timescale might make that unfeasible. The consultation closes on 12 February next year, and we would expect scrutiny of any changes to the Immigration Rules for at least a 21-day period, which is the convention, but we were told by the Home Secretary in the statement several weeks ago that she intends to start adopting the changes from April of next year. That provides only a very short amount of time to scrutinise potentially hundreds of thousands of consultation responses and to consider whether and how they impact the proposals. These are supposed to be at a formative stage, and I can comment on what the confirmed exceptions are so far in the consultation document.
The Chair: Just before you move on, I am sorry to interrupt you for a second time, but just to be clear, from your own professional experience, is it your submission to this committee that the consultation time is too short and that there should be consideration of implementation at a later stage than is currently planned?
Zoe Bantleman: My concern is that the window after the consultation period, given when the Home Secretary intends to begin to implement the changes, is too short. The consultation itself is running for the ordinary 12-week period, which we would anticipate. The concern is that there are only a few weeks after the consultation closes and before real changes might be laid before Parliament.
The Chair: Thank you. Please continue.
Zoe Bantleman: The only confirmed exceptions in the consultation document thus far are for people with settled status under the European Union settlement scheme—EUSS—which is in line with the UK’s international legal obligations under the withdrawal agreement, or for grants of settlement related to the Windrush scheme. Individuals who already hold indefinite leave to enter or remain in the UK are also exempt from the scope of the consultation, so we are not speaking of taking away people’s settlement if they already have it. People who hold permission granted under the Hong Kong British national overseas route will also remain on their five-year route. Someone who has permission as the parent, partner or child of a British citizen and meets the core family requirements of their route will remain on the five-year route.
There are a couple of instances where this could lead to perversity, and I was hoping to run the committee through these, if it would assist. First, someone who is here as the husband of a British citizen but, in their own right, has a work visa—let us say that they are a senior carer caring for elderly British people in a care home—will be on a 15-year route to settlement under the new proposals, whereas the husband of a British citizen who is not in work at all but is here on a spouse visa will have a five-year route to settlement under the new proposals.
The second area of perversity is an example that I wanted to give in relation to Hong Kong. There are Hong Kongers here who were granted refugee status and who are likely to be some of the most at risk of political persecution. Many of them apprehended the risk to them even before the national security legislation was passed in China and could not wait for the bespoke route for Hong Kong British national overseas to open. It opened the year after the legislation passed in China. I advised some of them when I was in practice as a barrister. They will now be on a potentially 20 to 30-year route to settlement under the consultation proposals, while their compatriots on the Hong Kong British national overseas route will, as I said, remain on their five-year route.
I do not know, Barry, whether you wanted to run through who will be impacted, and I can come back to children.
Barry O’Leary: Thanks very much, Zoe. Zoe has outlined who will not be affected. I have just made a few notes on who will be affected and why it concerns me. A big group affected in terms of earned settlement are skilled workers who are sponsored to come to the UK to undertake jobs. The way that the consultation sets it out is that people who are in, say, very highly paid jobs will be put on this new 10-year route to settlement, whereas they are currently on a five-year route. They will then be able to knock it down because of how much they are paid, so those who are highly paid will not be as badly affected.
If you read the consultation, you will see that the people who are probably most affected are going to be skilled workers in lower-skilled jobs. A big group within that is care workers and senior care workers. It is really important to note that that route is closed, so we are not talking about care workers coming in on that route in the future. It is no longer a skill level that is accepted. The rules were changed just as we left the European Union to allow more skilled workers in at a much lower level. It is those people who have come since then and are already in the country who are expecting to be on a five-year route to settlement, but now will not be. They are going to be on the base, which is 10 or potentially 15 years. They are the people who are going to feel a big impact.
Because they are impacted, their children are too. At the moment, if you take an example of a 13-year-old who comes with her senior care worker mother, she enter the British education system when she gets here and would expect to be able to get permanent residence by the age of 18. It is unclear from the consultation, but it is clearly going to be longer than that. There is a baseline of 10 years. That child may well be 23 at the earliest; we are not sure.
It is important that you see what the benefits of permanent residence are. To that child, the biggest one is university. Our university system runs its fee and student loan systems on indefinite leave to remain, permanent residence, or settlement. I should say that, although we call them three things—settlement, permanent residence, and indefinite leave to remain—they all, in effect, mean the same thing. That child, therefore, could have real problems accessing university because they would be treated as an overseas citizen. It might seem like quite a small thing, but you do come across children in the system who feel quite British, have done their education here and would expect to pay the same as British students. They could, in effect, be excluded from that. Children would be affected in that way.
I have to say that, while this might seem like quite a niche point, I am not sure whether the Government have considered the unborn children of these migrants. Our British Nationality Act is run on the basis that, if you are born in the UK, you are a British citizen if your parent is settled. If your parent is British or has indefinite leave or permanent residence, and you are born here, you are British at birth. However, if we say to migrants, “It’s going to take you much longer to become settled”, we are going to produce a lot more children born in the UK who are not British citizens. Maybe that is the goal, but it is not a very integratory goal. It seems very strange.
We have to talk about the Irish. You will be surprised to hear that, with the name Barry O’Leary, I am a dual national, but I am also British. Traditionally, we have looked at partners or children who are coming from abroad and said, “We will treat the family members of the British, the Irish and people with settlement, permanent residence or indefinite leave the same”. This consultation is really making a big difference, as it is with British nationality, in saying, “We are not going to treat them the same. We are now going to treat those people as if they are different”.
I do not know why they would want to do that, but it will mean that the partners of Irish people and permanent residents will be expected to take a lot longer to get to permanent residence than the partners of British people. I know that the Government have said, “Well, they have only just come”, but you have to remember that the Irish community have been here for a long time. I am unsure why they would be treated differently.
I might be going off the path, but this is important. A lot of the talk that goes on is about “the British taxpayer”. The British taxpayer is not necessarily a British citizen. The British taxpayer may be an Irish citizen, a migrant or somebody with indefinite leave. It is really important to remember that all these people are paying tax when they are in work, et cetera.
I want to go to children again and talk about child poverty. It might not really be known, but we already have a different route to settlement, depending on your circumstances, even if you look primarily the same. If you are the parent of a British citizen child, you will, one would hope, get the right to stay in the UK if you are a migrant. It is really about the rights of the child. We have got to a stage, rightly, whereby, if the British citizen child should be staying in the UK, the mother—it very often is the mother—should be able to stay too.
The situation, though, is that, if that person has a certain level of income or amount of money, and no negative immigration history, they currently take five years to get to settlement. If that person does not have enough money or has a negative immigration history, they currently take 10 years to get to settlement, so we already make a discrimination between those two groups.
My reading of the proposed rules is that that mother—or it could be a father—may now, with a negative immigration history or having relied on benefits, be pushed to 20 years or even longer for settlement. These could be the mothers of British citizens, or at least children who are settled. As Zoe rightly said—we agree on this—although the consultation says that the family members of British citizens will not be affected, it does then say, “If they meet the core requirements” or, “If they meet the mandatory requirements”. To somebody such as me who works in the system, that means, “How much money do they have and do they have any negative immigration history?”
The Chair: Can we just pause on that point?
Q23 Baroness Buscombe: I am very interested in this, because you have just hit the button. A lot of this is about the constraints on the money in terms of our capability to cope with immigration. Should we instead be concentrating on the benefits system rather than on the immigration system, or should the two be aligned and should we be reforming both, so that there might be a fairer outcome?
Barry O’Leary: The first to thing to say is that lots of migrants pay tax.
Baroness Buscombe: Yes, but many of them do not pay enough tax to cover all their costs.
Barry O’Leary: No, but neither do a lot of British citizens. We are almost all in this together, but I understand the point.
I am very concerned about changing things for people who are here already. It is fundamentally unjust. I will come back to it and I do not want to go too far off it, but the point that I am making here is about the care worker who is being told, “You are not making enough of a contribution; you are not paying enough”. That is in the consultation. They are worried that those people will go on benefits. That is exactly your point, which I do see, and it is the Government’s point.
My concern with that is that they did not hoodwink us by getting here. We set up a visa system post Brexit that allowed them to come. As part of that system, we said, “You will get status after five years”. We have now closed that route, because the country or the Government do not want it. Can we really change it for people who are already here and whom we have already brought in? I worry about that.
On the wider point, most migrants do not have recourse to public funds. Basically, if you are here on the skilled worker route, you do not have recourse to public funds. That is a massive route; it is the big one. If you are a student, you do not have recourse to public funds. That is the other big one. If you are here as the spouse of a British citizen, you do not have recourse. If you are here as the spouse of an Irish person, you do not have recourse. Lots of these people are already outside of the benefits system.
The Government’s point would be, “If they get permanent residence, they may all leave their jobs and go on to benefits”. Would they really? I am not convinced that there is any basis for saying that. I have not seen the figures. I am not an economist, so maybe it is true, but I cannot see how a skilled worker who has been working would necessarily have any more incentive to suddenly throw it all up in the air and say, “I’ll be on benefits”.
One point that I have to make, if I am being fair, is that there may be, at the lowest level, more in-work benefits. Maybe they would be entitled to those. My point of view is that that is the price that you pay for keeping the promise made when those people came in. I would accept that the Government’s proposal to put off permanent residence as much as possible could make a saving, but I am not sure whether it is just.
Zoe Bantleman: May I come in on that?
The Chair: Yes, very quickly, because we are going to have to move on.
Zoe Bantleman: On the point in relation to benefits and whether it is interconnected with the migration system, it is entirely so. We really need a cross-government approach to both immigration and welfare. We await to see whether the child poverty strategy, when published, takes into account the impact of these changes on child poverty for migrant children, because our concern is that it will only exacerbate the structural issues that already exist due to the complexity of the migration system.
I would note that, as Barry said, most migrant families are already subject to a condition that they have no recourse to public funds. What this consultation is talking about is how, in those cases where the Home Office has decided that it is necessary to lift that condition and has given that family permission to access public funds, they should be penalised in relation to their route to settlement. What the consultation says is that their five-year route to settlement may become a 10 or 15-year route to settlement if they have been given permission to access, and have accessed, public funds.
Another thing to note is that the proposals will prolong the precariousness that exists for families who have fallen on hard times. It urges them to suffer in silence while children miss out on important life and educational opportunities, whether that is school trips or early education. While I am no expert on our benefits system, I would also highlight that universal credit has replaced a number of previous in-work benefits, as Barry noted.
Baroness Buscombe: That is where everything goes into one pot.
Zoe Bantleman: Yes, exactly, and it counts as a public fund for the purposes of our Immigration Rules. Many of these help people tackle the cost of living crisis, work allowance, income support, housing benefit, income-related employment and support allowance, child tax credit and working credit tax. These help insulate local authorities from their obligation to help families who are at risk of destitution or homelessness, so they do save public funds in other areas. In-work benefits enable people to contribute, and the entire point of this consultation is how we can enable people to contribute. If they are not in work, they cannot contribute.
The Chair: Thank you, both. That has been a very detailed and enormously helpful answer. It would be enormous beneficial to the committee if, between you, you would be willing to put together a list of all of the changes that you see happening and the impacts on different people, in the way that you have been answering. If we could get that, that would be enormously helpful.
We are also interested, of course, in what other countries do, to see what we can learn from them, to make comparisons, and so on. We want to look at Europe and at the rest of the world. We will come to Europe in a second, but we begin with the rest of the world.
Q24 Lord Bach: Zoe, it is very good to see you here. I should say that we have worked together. It is also good to see Barry, of course.
How does the UK’s proposed approach to settlement compare with other countries? If the changes are carried through, will they have an impact on our international standing? How have other countries applied changes to settlement policy to those on the path to settlement? I wonder whether we could have answers from both of you.
Barry O’Leary: You are going to have a much shorter answer from me on this one, because I am not an expert on what other countries do.
I would just say one very brief thing, as I know you wanted to look at the EU. We are now in a very different earned settlement position to the EU. The reason that we had such a big influx of skilled workers was that we had to change our rules post Brexit, whereas our closest neighbours in Europe are still working in the EU, so they have a lot of internal free movement whereby people get status after five years. I believe their general route for workers from third countries is five years, but I will hand over to Zoe, because I am not an expert on it.
Zoe Bantleman: I would emphasise, as Barry did, that I am qualified only to provide legal advice in England and Wales, and so I am no expert in comparative research. Last night, I did a very surface-level comparative glance at different countries in order to assist the committee.
Canada, for example, has an express entry system for skilled workers, which provides permanent residence, so settlement, from the moment that the person lands in Canada. They can get access to social benefits and healthcare, and can live, work and study. Family members can also be sponsored by permanent residents. Those who contribute by investment or entrepreneurship, and people sponsored through refugee programmes, also receive immediate permanent residence in Canada.
Australia and New Zealand provide routes to permanent residence in different ranges of time, with up to two to three years for skilled migration and for partner visas.
Even the United States allows immediate family members of US citizens and lawful permanent residents to apply. If successful, they receive a green card.
Many European countries allow permanent residence after five years for work routes. Sweden is shorter, at four years. Some even have quicker routes to family reunification.
Looking to our closest neighbours, for example France, some routes are as short as three years for joining a non-European citizen who has a resident card. Spouses of French nationals who have been married for at least three years, and children under the age of 21, can receive a resident card upon being admitted, so immediately.
As for refugees, the vast majority of countries that I have mentioned offer settlement immediately, or within one to five years. For an ordinary 10-year route to settlement, the only international comparator that I could find on a quick glance was Japan, but even Japan relaxed its rules in 2017 for highly skilled professionals and for family members of Japanese nationals.
As for citizenship, while many countries require 10 years of residence in order to qualify for ordinary naturalisation, the skip to 20 years of residence takes us into very niche company: Andorra, Bhutan, Eritrea, San Marino and Uganda. Even Kuwait has recently approved shortening its route from 20 years to 10 or 15 years.
As for 30 years of residence, which is what some refugees might be subjected to, that is comparable to and in the company of the United Arab Emirates. I could not find any other international comparator.
My initial glance would suggest that the UK would be in quite strange company and very distant from our nearest neighbours. With a 15-year route for lower-skilled roles, particularly in the health and care sector, we might expect our social care workers to pack up and leave for the greener prospects of New Zealand, Canada and Australia, where they would have a much shorter and more specific route to settlement.
The Chair: You keep referring to skilled worker schemes. In this country, “skilled worker” seems to be increasingly defined in terms not of the skill but of the money that they earn. Is that similar to the definition used in other countries or are they a bit clearer about the skills that they need rather than the salary that you get for using those skills?
Zoe Bantleman: From my brief comparative research undertaken last night, different countries have different schemes. It is often not just one skilled worker route. Countries with federal Governments often see different provinces or territories saying what their specific needs are, and those take account of the skills that are lacking or in shortage. I saw several routes in these other countries specifically for care workers.
Q25 Lord Henley: Could you focus particularly on our asylum rules and how they compare with Europe? If you are a refugee, what legal routes are available for you in terms of coming to the UK?
Zoe Bantleman: At the very outset, I would say that the UK and the EU used to be completely aligned when the UK was part of the common European asylum system, but they have not been since the end of the transition period following Brexit. Since then, the UK has passed a string of asylum laws, all of which I have worked on—the Nationality and Borders Act 2022, the Illegal Migration Act 2023, the Safety of Rwanda (Asylum and Immigration) Act 2024, and now the Border Security, Asylum and Immigration Bill—some of which have been the subject of international criticism, including from the United Nations.
In Europe, they are going through their own period of upheaval at the moment. We have the European Union pact on migration and asylum, much of which is set to apply from next June, so I would say that we do not yet have the finer detail of exactly how different countries in the EU will implement the pact.
In short, however, the pact has a series of regulations and laws that it proposes—new procedures regulation, one in relation to crises, one in relation to screening, and a border procedure—many of which will result in greater externalisation of the EU’s asylum obligations and increased detention, and potentially place human rights at threat, but we will see how they are implemented and put into practice next year.
There are two ways that I would note that the UK’s asylum system is harsher than and different from Europe. First, since the good character guidance change in February of this year, we have seen that anyone who arrives by a dangerous journey or enters irregularly is now banned for life from citizenship. That is completely different from the rest of the Council of Europe. I recall that Lord German made this point in the debate on the Border Security, Asylum and Immigration Bill.
Secondly, Article 17 of the recast reception conditions directive ensures that, in Europe, asylum applicants have access to the labour market no later than six months from the date on which they make their application for international protection, provided that an administrative decision has not been taken and the delay cannot be attributed to them, whereas, in the UK, we do not allow asylum applicants access to the labour market until at least 12 months of their application pending and, even then, only in relation to the immigration salary list, which is a much narrower group of occupations.
In terms of the safe routes, I will try to be quick and summarise them, but they can be briefly set out in two categories. One is what I would call the bespoke routes, which are generally country-specific. We have one for Hong Kong: the Hong Kong British national overseas route.
We had three for Afghanistan: the Afghan relocations and assistance policy, the Afghan response route, which was in relation to the data breach and was announced only this summer, and the Afghan citizens resettlement scheme. All have been closed since this July, so there are now no safe routes from Afghanistan.
We have the Ukraine schemes, which were opened in March 2022. The Ukraine family scheme has since been closed, in February of last year, and so the only existing Ukraine scheme routes are the Homes for Ukraine sponsorship scheme, which no longer allows Ukrainians to sponsor other Ukrainians—only settled persons can sponsor Ukrainians—and the Ukraine permission extension scheme. Those are the remaining bespoke routes.
Turning to the general routes, we have the UK resettlement scheme, which, in 2020, consolidated the previous Syrian resettlement schemes, the vulnerable persons and children’s resettlement schemes, and the gateway protection programme. We have the UK community sponsorship scheme, and the mandate resettlement scheme, which is the oldest resettlement scheme to the UK. In the year ending September 2025, just to give you a flavour of how many people enter on these general routes, 834 people arrived on those three, so the UKRS, the community sponsorship scheme, and the mandate resettlement scheme.
There are only two other routes that can be conceived, in my view, as safe routes. One is the family reunion route, which was suspended in September, and we are told by the Government in their asylum policy statement that there will no longer be automatic family reunion for refugees. The other is the displaced talent mobility pilot, which was a pilot that provided a pathway for certain talented displaced people. Only 200 people were to be resettled on that route. These are very small numbers from the latter general resettlement schemes.
Barry O’Leary: As you can imagine, I am very grateful to be paired with Zoe, because I do rely on her for that information. I am just going to make some general points on this. The first thing to say about the asylum rule proposals is just to remember who we are changing the rules for. At the moment, it is recognised refugees. It is people who, the UK has accepted, have a well-founded fear of persecution if they are returned to their country of origin. In a world that talks about “stop the boats” a lot, it is very important to remember that these changes affect people who have been accepted. I hate the term “genuine refugees”, but, using that terminology, they are genuine refugees.
At the moment, they have a five-year route to settlement. Although the Government keep saying that it is automatic, the Government have an ability under the current system to status review at the end of five years. Very often they do not, I have to say. It is probably due to resources and probably because it is very rare that things have changed that much in the country of origin.
I am going to go back to general comments about comparisons with Europe and so on, but I also want to talk about a legal route that is coming under increasing criticism in the papers that we have and just generally. One legal route is that you come to the UK in another category. There is nothing wrong with coming to the UK as a student and then claiming asylum. This has been increasingly criticised, but the truth is that there is no route.
I am going to use the example of a gay man in Uganda. If you are at risk and you know that there is trouble, but you are also able to get to a master’s programme in the United Kingdom, it is fully acceptable for you to apply and come to that master’s programme. It is also acceptable, if you then can go on to a graduate scheme, to go on that graduate scheme. It may be that that man who is in fear because of his sexual identity never needs to claim asylum, because he has found his sanctuary. He has found his route into staying in the UK. That is completely acceptable.
If, however, his route is coming to an end, and he does not get a job or a skilled worker role, he may then have to claim asylum. It is completely lawful and completely understandable that somebody would not claim asylum immediately if they have another way of finding sanctuary. It is becoming increasingly criticised, and we need to stand up for it and say, while you have hardly any safe and legal routes—there is no route for that man to come to Britain—you have to understand that, if people come in that way, that is safe and legal, and it should not be criticised.
Q26 Baroness Buscombe: Can I just interrupt there? The reason that they are changing it is that a lot of people have abused that system. I know of some in particular who have come in on that route for student visas, but they are not students at all. They are going into other things completely. Is that not the reason? It is the trust factor.
Barry O’Leary: That one is different from my example. I am talking about the man who finishes the course. But if that person is recognised as a refugee—this will be controversial—what do we say to that person? “We are angry with you. Although we accept that you fear persecution and there is no visa available for you to get outside of your country, we are angry that you used the student route to find safety.” Is it terrible that you use what is available to you to leave your country of origin? I would ask that question.
Baroness Buscombe: That is not for me to answer.
The Chair: The committee will have a deliberation about what the committee’s view is. We are interested in Barry’s view.
Barry O’Leary: I am not allowed to ask the questions, am I?
When we are looking at the comparisons—Zoe has done them so well—we sometimes need to take a step back and go, “How are we using these comparisons, and what are we doing with them?” It is very easy to say, “How long is settlement in Europe? Is it shorter or longer, since that will affect how many people get on a boat? What is the right to work in Britain and Europe? Will that affect how much people get on a boat?” The truth is that, usually, it is harsher in Britain.
I would also take a step back and say, “Let’s just not make these big assumptions”. One thing that is missing in this whole discussion is real, proper evidence as to why people get on boats. There is a government report that was buried for quite a while, but was done in 2020. We did not see it for a while. It was called Sovereign Borders: International Asylum Comparisons Report.
I am less restrained here, because I am not speaking on behalf of ILPA or anybody. I think it was buried because it did not say what people expected it to say. It was quite clear, and I have a little quote from it. It said, “Many asylum seekers have little to no understanding of welfare policies”. While we might assume that these policies that we are suggesting will put people off coming to the UK, we do not know that. If I were wanting to do these policies, I would not be trying to rush them through now. I would be trying to interview nearly every person who has got off a boat and claimed asylum to get to the bottom of why.
That would help us with two things. First, if you want to stop the boats, it might help us stop the boats. Secondly, if we are going to bring in safe and legal routes, which the Government have proposed and I very much welcome, we could focus those safe and legal routes on the reasons why people are getting on the boats. If community and diaspora in the UK really is a driver, maybe we should be focusing safe and legal routes on community and diaspora.
Too often, we use our assumptions and common sense, and think that the fact that you can settle after five years rather than 10 is a driver to come on the boats. We do not know that. Your average refugee does not know or care whether it is five or 10 years. I think it is wrong and we should not treat them in that way, but, at the point of making a decision to move, we do not know that that is a big driver. Before we start making things much harder for recognised refugees, we need to be careful that we are doing it for any established policy reason.
The Chair: I am going to just remind the committee—and I am as guilty as anybody else, so I am making no criticism anywhere—that we are less than a third of the way through the questions that we want to ask, and well over a third of the way through our time allocation, so I would be grateful to colleagues and to our two excellent witnesses if we can keep answers and questions relatively short. Both of you have so much to offer this committee that you will not be able to say it all in the time we have available, so I hope that you will stay in contact with us and provide, in writing, some of the things that you might have said to us if we had had more time to discuss them.
Q27 Lord Filkin: Professor Alan Manning recently told us that the UK has become the last court of appeal for asylum seekers, because we no longer have access to the European database and, therefore, have no visibility on whether someone has already applied for asylum in another country and been rejected. Is he right that, in effect, this gives people a second bite of the cherry?
Barry O’Leary: My answer to that would be to try to get to the bottom of it with research. We still have lower numbers than other countries.
Lord Filkin: I am not really asking about the numbers. I am just asking factually. The UK Government will not be aware of whether a person who applies to us has already had an asylum case rejected, whereas, if we were still in the European Union, they would be. Is that not correct?
Barry O’Leary: We have made it harder to know that since Brexit, yes.
Zoe Bantleman: Yes, since leaving Europe, we have lost access to the Eurodac fingerprint system and information in the Schengen system. We also left Dublin III when we left the European Union. I do not know what Professor Alan Manning knows or does not know about courts of appeal, but what is the UK trying to do once it has this information that someone has been refused?
Lord Filkin: You have answered the question. Thank you. I do not need to go further than that.
The Chair: We will pick it up with you in more detail, but one of our big concerns is the loss of access to various databases following Brexit, meaning that we do not know what has happened in other cases. We will pick that up later.
Q28 Lord Dubs: Being the last court of appeal, some of the asylum seekers I met in Calais some time ago said that, because they had been fingerprinted when they came into Greece and Italy, they were no longer able to claim asylum within the EU. Therefore, the only country that they could come to was the UK. What do you think about that?
Barry O’Leary: That sounds plausible to me. I do not have any figures, facts or interviews, but we did make things more difficult for ourselves by separating ourselves.
Zoe Bantleman: The key point is that the UK already has a system, rightly or wrongly, to deal with people who have passed through Europe. This is the inadmissibility system, which it put in place after we left the European Union and were no longer part of Dublin. Thousands of people every year have to go through this inadmissibility system, where we say, “We’re not going to consider your claim, not only because your claim has been refused in another country, but because”—exactly as Lord Filkin said—“you have been in another country. You were just in France or in Belgium before you arrived in the UK”. That is the basis on which the last Government attempted to remove people to Rwanda, and the current Government to France.
Access to fingerprints is not the end-all of the issue. If we do not want to consider asylum claims, we need to have somewhere to send people to. Those two countries have not proven to be feasible options for the UK to abandon its international legal obligations to consider asylum claims and to try to offshore, externalise or outsource them to another country.
Q29 Baroness Buscombe: You have touched on a number of issues around my question, but let me fire it at you anyway. What legal issues do you foresee in the Government’s proposed changes to settlement and citizenship rules? What are the UK’s international obligations in respect of permanent settlement and citizenship? Do the proposed changes present any concerns in this context?
Barry O’Leary: On the legal challenges, I concede to some of the proposals that we make. There might be a legal challenge to changing the rules while people are on the route. There are, again, discussions about trying to define Article 8 of the European Convention on Human Rights, on which we have had so much jurisprudence over the years. We should not try too hard to define something that, by its nature, has to be quite flexible.
We do have legal obligations in the ECHR. Under the refugee convention—and you will probably be able to quote the part better than I can—we are supposed to be facilitating integration and citizenship, and we are going against that, so we could look like we are breaking our legal obligations on that front.
My bigger concerns are probably the practical challenges that we are going to have with so many more applications in the system. Instead of somebody having just one application five years after their initial claim, we are going to have 2.5 years, 2.5 years and 2.5 years. I often worry whether, even if it is not unlawful, they can pull it off. That concerns me probably even more than the legal challenges. There will be some, but I will hand over to Zoe on that point.
Zoe Bantleman: There may be a number of legal issues that the Government should be thinking about as they are considering the consultation responses. If I were advising the Government, there would certainly be a number of questions that I would have. First, do any of the proposals discriminate without objective justification? It appears that some may have an undue impact on persons with disabilities, on women and on mothers.
Secondly, does any specific group of individuals under any visa category, including historic categories, have any legitimate or reasonable expectation that they would be able to settle within a specific period, subject to meeting all the rules of their route? Different promises have been given and different statements have been made over the years. Were there clear, express promises made to any group? That is going to require close scrutiny by the Home Office, which really is the only department that can look at all of its grant letters and all of the statements that have been made to see whether any promises were extended.
In addition to these legal arguments, there is also an overall rule of law argument about how our legal system works and how it impacts migrants for whom the system is continuously changing, meaning that the rug can be pulled from under their feet. They are denied legal certainty necessary to plan their lives and to make informed decisions.
Baroness Buscombe: Is Article 8 part of the problem with that? You talked about flexibility, Barry, but does Article 8 deserve a revisit in terms of its parameters? It creates uncertainty, does it not?
Barry O’Leary: Governments continually wish to revisit it. People want certainty, and I do understand the requirement for that, but Article 8 is always going to be a balance. “This is the family life that you have established, but this is what the country wants to do in terms of its own security and immigration control”, et cetera. That balance is there. Repeated attempts to make it very clear have failed.
A good example, going back some time, was in 2012, when we had a massive shake-up of the Immigration Rules and brought in appendix FM with entirely new family rules. The aim of the Government at the time was, “This is what Article 8 is now. We are telling you that these rules are Article 8”. In the 13 years since 2012, they have had to change and change, until we get to a point in 2025 where the rules just refer to Article 8, because there was no real answer.
There was a really interesting report by the Bonavero Institute, which stated that one of the problems is how Article 8 is reported. It is reported so poorly that, in fact, people often have a concept of it that is not really what is going on. I will hear people say, “People are just bringing in their uncle”. The jurisprudence really does not support that. You would have to be truly exceptional to work with that.
So what do we do with Article 8? I would prefer just to ratchet it all down and talk about what it does and why it benefits us, rather than thinking that it is necessarily a problem.
Q30 Baroness Bertin: Good morning. Could I just ask a very quick supplementary on the 1981 British Nationality Act and whether it is fit for purpose, or whether, with all the layers of legislation that have been put on top, it is just a completely incongruous thing to navigate?
Barry O’Leary: It is difficult to navigate. I would have some criticism of it, particularly the definition of “parent”, but I think Parliament has done a good job. Over time, Parliament has amended it and has brought it up to date. Our Immigration Rules are far harder to navigate and deal with than the British Nationality Act. I do sometimes say really positive things. The British Nationality Act is standing the test of time. I would tweak things; I would change things. My concern, as I said earlier in the session, is that moving the goal on settlement will fundamentally change how children become British, which I do not think was ever Parliament’s intention, because it does not have control over that.
Zoe Bantleman: I would agree with Barry that the more fundamental issue here is the unwieldy complexity of the Immigration Rules, but also immigration legislation. We have never done that consolidation task since the 1971 Act and yet, year after year, we add further pieces of legislation. It is difficult for me to keep on top of it, and it is my full-time job to do so.
Barry O’Leary: In UK visas and the Home Office, the nationality section is often quite a centre of real excellence. That is because they fully understand what they are dealing with. For a lot of people in the Civil Service, it must be extremely hard to deal with the changes in migration as opposed to nationality law.
Baroness Bertin: Thank you for that very good answer.
Q31 Baroness Cash: I wanted to revisit the Article 8 question. From a number of members of the Government, and in the jurisprudence commentary by senior lawyers, there have been criticisms of the judiciary, tribunal panels, chairs and so on in terms of how they apply Article 8. Is that your experience? What do you suggest we do about it?
Barry O’Leary: My honest answer, even if it sounds quite brutal, is just to continue to respect the independence of the judiciary. I am very concerned by Governments getting involved and trying to say whether it is bad. We do not have a judiciary that is particularly activist or particularly one way or the other. It is interpreting the law as it is supposed to do.
Honestly, working within the field, I will see examples of applications that I think are meritorious and are refused, and they may not be successful in appeal. I will also see examples of when it is essential and when the Home Office has made a really poor decision. I have examples from my own caseload.
One is of a young man who has been in the UK. All his family were in the UK. He has lived here for five years. He has a minor criminal offence, and the Home Office says, “That is it—done”. In fact, Article 8 saves him. His community thought, “Of course he must remain. That was a silly, juvenile thing that he did in getting into a fight. He must remain”. You say to people, “Why he has to remain is Article 8”, and they will say, “No, we don’t want that. That’s that terrible thing that is used to keep foreign prisoners here”.
While it might seem like I am being a bit brutal here, the discussion of Article 8 itself and the discussion of the judges is where we are going wrong, not necessarily how it has been implemented.
Zoe Bantleman: I do agree with Barry, but, as he said, it is not just appendix FM and the changes that were brought in in 2012. It was also, under Theresa May, the Immigration Act 2014 that sought, in primary legislation, to try to interpret Article 8. That attempt to reinterpret Article 8 and to give guidance to judges and to the courts has led to the jurisprudence that this Government now say is too unwieldy in practice to apply lawfully.
There is a risk that, by trying to once more undertake this task of reinterpreting Article 8, whether in guidance or in legislation, we just create another 10 years of trying to figure out in the courts what it means and what the Government or Parliament were trying to say in statute. That is a real risk.
Under Article 8, the protection is not so strong that it would require, in most cases, people to be granted settlement. In most cases, Article 8 is about where a family is being separated. It is not about saying that someone has the right to settlement. It is saying, “You shouldn’t remove this person to the country, because their private life or family life ties to the UK are so strong” or, “You shouldn’t force this family to continue to be separated, with some family members overseas and some in the UK”.
Most appeals are not about the question as to whether someone should be granted settlement. They are about whether removing the person from the UK or barring them from entry to the UK would breach their Article 8 rights. In any case, when we are talking about settlement and citizenship, there is a whole host of other obligations, as Barry said, under the refugee convention, the statelessness convention, and the UN Convention on the Rights of the Child. We also have the convention on establishment, which says that we will not remove nationals of certain signatory members from the UK if they have lived here for 10 years. There is a whole host of other international obligations that need to be accounted for. The answer is not always that the problem is Article 8. That is a misleading issue.
Q32 Lord Filkin: Most British people, like it or not, want the Government to reduce the number of illegal migrants coming to the country. What legal changes, wider than Article 8, if any, would have most impact on that, or is it not fundamentally a question of changing the law? Is it only physical means that will reduce the numbers coming?
Barry O’Leary: I would go for research to know why they are coming. That is surely lacking. I would then ally that with safe and legal routes, which is something that they have said they would like to do, to remove the need to make an entry that is irregular.
Lord Filkin: We know a bit about why they are coming. They want work and they want a better life, which is totally understandable. In addition, some are fleeing persecution. I do not quite get the bite of your question. I do not think that another five years of research is going to play to the politics of this issue at all.
Barry O’Leary: One thing we need to do is not play to the politics of the issue all the time. We have to make really evidence-based decisions about migration. One of my concerns is that, for many years, government policy has been driven by politics and by the media. Therefore, we sometimes do things that are not necessarily that well thought out. While I know that it might be politically very unpopular, I would try to sell the message: “This is a really hard thing to solve. The world is a difficult place, and people are moving. These are the reasons that they have given for moving. We are going to try to deal with those reasons”.
Lord Filkin: I take by implication, but correct me if I am wrong, that there are no legal changes that you would suggest in response to my question.
Barry O’Leary: They would be more practical. Safe and legal routes would be practical. Research would be practical. Politically, there might be more co-operation with other countries, because we have had to go backwards on that, and we can go forward in the future.
Lord Filkin: Safe and legal routes are not going to reduce the demand one bit, are they? They are just going to add a legitimate supply route.
Barry O’Leary: That is a question, is it not? If people are getting on a boat and doing an irregular entry, they are doing that because they want to be with a family member in the community who has claimed asylum. If you then focus your safe and legal routes on that reason, it might reduce demand.
The Chair: Lord Filkin, I am really sorry to cut you off. I would love to know more, but we have other things to raise. We can get both of our witnesses to write on these issues.
Q33 Baroness Hughes of Stretford: With respect to both settlement and citizenship, could you help clarify for us the changes that can simply be implemented by diktat of Ministers through the Immigration Rules, and which would require primary legislation?
Zoe Bantleman: The vast majority can be done simply by laying statements of changes to the Immigration Rules, which should ordinarily require 21 days of scrutiny, but are subject to the negative procedure, so overall have very little parliamentary scrutiny. The changes that would require primary legislation would be to impose a condition that there is no recourse to public funds on someone who has indefinite leave to enter or remain. That would require an amendment to Section 3(1) of the Immigration Act 1971.
The other element that would obviously require change is that, if we are going to alter citizenship laws, the British Nationality Act 1981 will require change if it is not merely extending the time until someone has no time limit on their stay here, which can be affected through the Immigration Rules. If we want to say, “No, in order to qualify for citizenship you need to have spent not five years, but 10, 15 or 20 years in the UK”, that will require primary legislation.
Baroness Hughes of Stretford: So simply changing the timescale would require primary legislation.
Zoe Bantleman: For citizenship, yes. For settlement, just the Immigration Rules will be sufficient.
Baroness Hughes of Stretford: Could I just return very briefly to Baroness Bertin’s question on the British Nationality Act and whether it is fit for purpose? I heard your responses. A leading barrister in this field has said that the Act was already a mess when it was enacted in 1981. Since then, it has been changed, with amendments on amendments on amendments on amendments, so now it is not simple, it is not uncomplicated, and, in fact, you cannot weave your way through it very easily. Would you agree with that?
Barry O’Leary: I would agree with that.
Baroness Hughes of Stretford: You said it was okay.
Barry O’Leary: What makes it easier to understand is that we deal with a system. I would describe myself as a nationality and immigration lawyer. They obviously overlap, but they are also quite separate in how they are dealt with. If you ask me, “Which system desperately needs consolidation, better language, better drafting and to be made easier?” it is absolutely the immigration system. I am not saying the British Nationality Act is straightforward or complex, but if you left it up to me to allocate resources, I would absolutely put it in the immigration sphere. There are judges, with the Immigration Rules, who are just like, “How can anybody read these?” Honestly, it can be that bad.
Q34 Baroness Prashar: Zoe, you recently wrote, “Immigration and asylum law has become sensationalised and distorted”. Has it become worse than it was before? What has been the effect of this? What do you suggest we do to prevent it becoming further sensationalised and distorted?
Zoe Bantleman: I believe that was a comment I gave to the Law Society Gazette. The way that it has been sensationalised by the media, by politicians and by various segments of our society has a real impact for non-governmental organisations supporting migrants, refugees and people seeking asylum, their communities, staff and volunteers, lawyers preparing and judges deciding immigration, asylum and nationality cases. They have received abuse. They have been subject to physical intimidation and appalling threats. Their families have been targeted. Their home addresses have been put online. Images of their families have been circulated. They have feared physical abuse and they have been in danger. That fundamentally undermines access to justice in our society.
At ILPA, we believe that everyone deserves representation. That does not mean that only the person seeking asylum deserves representation. We want to see that government and local authorities are also represented in our courts and tribunals, but we do not think that any person who is exercising their professional and ethical obligation should be targeted on the basis of their chosen area of law.
Government lawyers are also immigration lawyers. We would like to see some solidarity, but also some honesty and truth about our immigration laws. I know we have discussed how incredibly complex they are. Indeed, it is very difficult to understand them, but if we are going to tell the public and inform them, and have informed discourse about what changes are necessary and what our laws, policies and practices mean, there needs to be truth about that system. That requires understanding our immigration laws, not distorting them, and not telling the public things that are not actually true in practice. That is an important element of it.
We also see this continuously with the word “illegally”. We see that individuals are called illegal migrants. We have been told that they are abusing the system, even if, as Barry said, they are applying in time, even if they meet every requirement of the rules, and even if we do recognise them to be refugees. There needs to be a real discussion about what is legal and what is illegal, and whether, in a country that does respect the rule of law, including international laws, when someone is exercising their international right to seek asylum, they are acting illegally or not. There needs to be a little bit more informed and honest discourse.
Baroness Prashar: Have you seen it get worse over time?
Zoe Bantleman: Definitely. I have been legal director of the Immigration Law Practitioners’ Association only since 2021. In that period of time, I have seen it ramp up to the events of the riots last year and through to this year with Tommy Robinson’s march. We have definitely seen targeting, but we have also seen that there is just more general misinformation, including coming from trusted sources in the media that the public are reading. It is becoming a more endemic and systemic issue, rather than an isolated issue of misinformation just on social media, for example.
Baroness Prashar: What can we do to make sure that it does not become more sensationalised?
Zoe Bantleman: Fundamentally—and this goes back to the point of judicial independence and the rule of law—we need all elements of society to be calling out the misinformation, and to be upholding the independence of the legal professions and the judiciary, which are fundamental to our democracy and to the rule of law.
Q35 The Chair: You have both told us that the asylum legislation and the rules and regulations around it are so complicated that even the judges and the judiciary do not understand it. It is very difficult. Putting out the truth that you talk about as a solution to this is clearly very difficult.
Barry O’Leary: Putting out the truth might be difficult, but, even though we think it is very complex, some of the distortion is actually often quite simple: the idea over who is entitled to benefits and how people pay for their health system. We often have a thing about, “Migrants are taking from the health system”. Actually, in some ways they pay double, because they pay a very large immigration health surcharge of over £1,000 a year and then pay income tax. We can do a job, even if it is complex, with some basic stuff.
Can I just answer that question as well? I have been practising in this area for 26 years. I would not say that until recently it was all just wonderful. I often ranted and often got quite overemotional about it, but I do feel that at this point in time it is probably the most distorted I have ever seen it. Very frequently, I look at a news story and some very serious people in very important positions in our Government or in our Opposition are saying things that are just untrue. You put it out in a consultation. That is not true. The use of “automatic settlement” in this consultation is pretty much always wrong. It is not true.
Baroness Prashar: Are you suggesting that the consultation document itself is misleading in places?
Barry O’Leary: It is not the worst, because it is mainly not really based on what there is now; it is what they are proposing. They are allowed to have their own proposals. I would say more generally that the level of discourse even at the highest part of our Government and Opposition is often very, very poor, I am afraid.
Q36 Baroness Cash: I am very grateful to both of you. You both care very much about what you do. That is obvious, but I also think this is such a grave and serious area that poses an existential threat to our society that we need to be focused on data. I do not expect you to give it to us now, but I would be really grateful if you to look back at the transcripts of the last couple of answers, particularly you, Zoe. You cited an awful lot of things. I would be very grateful to have the data on those things: the number of incidents, where those are reported, and how as a committee we can look at and analyse those.
That is in answer to Baroness Prashar’s questions in particular. You gave a long speech in response to that, but there was no data in that; it was anecdotal. For us as a committee, it is really important that we have hard facts and hard numbers. I would be grateful for both of you to follow up afterwards. I hope that is okay, Chair.
The Chair: One of the jobs of the committee is to gather that information. I absolutely accept it is important that we have it, but I am not sure it is fair to ask our witnesses to provide that for us.
Baroness Cash: Only where they gave an example. Sorry, I should have made that clear.
The Chair: I am sure they can provide evidence of the examples they gave, but it is the job of the committee to gather that data, rather than our witnesses.
Zoe Bantleman: I would happily provide anecdotal examples, but I would also suggest going to the other legal professional bodies, such as the Bar Council, and to the Lady Chief Justice.
The Chair: We will be very grateful for any help you can give us, but we will also do some of our own work as well.
Q37 Lord Tope: Is the process of applying for ILR and citizenship too complex? Can you actually talk us through that process, so that we can then get it on our record?
Barry O’Leary: I am going to talk about more of a family member or a skilled migrant here, rather than a refugee, but the first thing to say is that it is very easy, when you get people like me going, “I disagree with this”, to forget that there are some things that the Home Office does very well. There are some things that we really should celebrate, when our immigration system is working efficiently. This can often happen in the process of indefinite leave.
For instance, if I were the partner of a British citizen—maybe I came in initially on a visa as their spouse—I would have had just over two and a half years. After two and a half years, I would have applied for another two and a half years in country, again showing that I meet all the rules—finances, English language—and that we are still in a relationship. Just before I get to five years, I would then say, “Do I meet the rules? Am I still in a relationship with that British citizen? Do we still have the requisite finances? Have I committed any crimes? Am I of good character?” We would then apply.
The rules can be complex, but the process is not. You look at the rules. “Do I meet them? What evidence do I need?” You then submit an online application form. You upload your evidence on to a UK visas portal. You then have an appointment to have your biometrics taken. You then have a decision. So it can be very good.
I would say a couple of things. First of all, the rules might be complex. The process can be quite good. Secondly, the fee is £3,208. If you need it done quickly, not within six months, you add another £1,000 to that. These are people who have already paid quite massive fees along the way. The problem comes when it is not straightforward and you cannot afford the fee. It is very difficult to get indefinite leave then, because there is no fee waiver for indefinite leave. People can get stuck on the finances. If it is more complex, I would make it sound too easy, but for the vast majority of applicants it can actually work very well. It is a good part of our system. We should be pleased with it. I do not think all immigration lawyers agree with me, but luckily I am here to give my own opinion. That is part of the system. We can say, “Look, this is good. Well done”.
Lord Tope: Zoe, are you one who agrees with that or not?
Zoe Bantleman: As Barry said, the system is currently too complex, but they are not mutually exclusive. Much of this is by design, where there is complexity in the system. That design can be altered to make it less complex. To give credit where credit is due, many types of applications within the Home Office are processed much more quickly than other countries around the world. That is one thing that our Home Office can do very well. It is the case that it can return an application on settlement within 24 hours. That is an incredible feat.
It is not necessarily the case that everything is too lengthy and too complex. It is too expensive and there is no fee waiver, which means that some people might never settle if they can never afford the settlement fee, but where there is complexity it is by design in our rules, in our laws and in our processes. We can amend all of those.
The Chair: We talked earlier about other countries in terms of the fees for settlement, permanent status, et cetera, however we are going to define it. How do they compare in other countries? Did you check that when you were doing your research last night?
Zoe Bantleman: I did not check that point, but when I checked several years ago in order to submit evidence to Parliament in relation to an increase in immigration and nationality fees, for many routes, particularly work routes, the UK was by far one of the most expensive in the world, both the fees paid by the employers, the organisations that wish to bring in the workers, and for the individuals themselves. Those fees have only gone up year on year since then. I am sure that they are very expensive, including settlement fees, which are substantially higher than even when I was in practice.
Barry O’Leary: If your spouse is applying from abroad now, it is between £4,000 and £5,000 for that first application. I do not have the facts and figures here, but I believe it is one of the highest in the world. That is just your first application. That repeats. If you actually extend the point of settlement, it is going to repeat more times.
Zoe Bantleman: In almost all of those, the Home Office makes a substantial profit, and it publishes its profit that it makes from all these immigration applications. There are only a few rare categories of our rules where the applications do not result in the Home Office making a profit, versus the cost to it of processing the application.
Lord Tope: I am still wondering whether it is too complex. I understand it is too expensive, but is it too complex, or could it reasonably be made less complex while being just as effective?
Barry O’Leary: You could make the rules read better and you could give better guidance. In the context of a Government, or successive Governments, that want to put on these restrictions, I am not sure whether it is too complex. Again, it is just my opinion. It is a shame that some people still do not understand it, but a lot of people do.
Zoe Bantleman: It is highly route-specific, as well. It really depends on which category of the rules you fall into. Some of the categories have extremely onerous evidential and other requirements, and some are rather simple, with just a little letter from your employer and a few other boxes ticked. It really depends on which category of the rules you are under. Human rights applications tend to be some of the most complex, while work applications are relatively uncomplex.
Barry O’Leary: What has been proposed is to make it much more complex, because we are going to start having these bartering systems, where it is like, “This is your contribution. This is how much you earned. This is what you did badly in the past. This is what you do now”. This earned settlement paper is looking at making it much, much more complex.
Q38 Lord Dubs: Can we turn to the “Life in the UK” test, please? What is the purpose of it, and what should the Government consider through their proposed refreshing of the test?
Barry O’Leary: I love this question, because the “Life in the UK” test bugs me. Unfortunately, I do not have a really good answer to the second part. For people who do not know, the “Life in the UK” test is based on a book that is all about life in the UK, history, customs and values. It is quite a difficult book to write, because people obviously have different views. Some of it is a bit strange. My experience of clients is that they treat it very much like people treated their driving theory test. There are loads and loads of test questions. It is multiple choice. Basically, they have to learn all this really quite random knowledge in order to pass it, and then it drifts away again. I assume the “Life in the UK” test is to help integration; I do not really believe it does. People see it as just something they have to do.
We could construct something that would be much more about learning about Britain, values, et cetera. That would be better. It would be more of a class and a bit more interactive. It would be less of a test, and more about imparting knowledge. I am not quite sure in my head what it is, but maybe just at least trying to get people to engage. I do not want them to have to write long essays, because that would really go against certain groups, but maybe more something like teaching them, rather than just saying, “Answer these multiple-choice questions”. It is a bit of a shame. There could be something nice about it and something valuable about it. It is lacking that at the moment.
Zoe Bantleman: I agree. In preparation for this, I once more read the written evidence that I submitted to this committee in a different formation in 2022, as well as your correspondence at the time with then Minister Kevin Foster. I stand by my evidence at the time, which was that the “Life in the UK” test is not fit for purpose. It does not assess sufficiently whether someone has knowledge of life in the UK, their integration or their contribution to the UK. It is a quiz, and it relies in part—because it is a multiple-choice test—on guessing the right answer, or on your skills or memory. It does not prove that you are integrated, or that you have an understanding of British society.
It is not a test of allegiance, because that is made through the oath or affirmation that is done at the citizenship ceremony. It should not be a proxy for testing English language, because there is a separate requirement to pass an English language test or otherwise prove your English language knowledge. What it really is, in its current form, is an unnecessary expense and an unnecessary hurdle. That is not to say that it could not be improved through other recommendations. This committee recommended classes, or some other method of showing that someone really does understand contemporary British society and relevant things such as what the House of Lords is, how to call in an emergency and all these things.
Another thing that has always bugged immigration law practitioners about the test, many of whom are British citizens themselves, is that, when they are looking at the test that they need to tell their clients they should pass, they themselves do not know the answers to all of these questions. Not everyone was a wonderful student of history back when they were taking their GCSEs. That is a real question as to whether it is fit for purpose. If it is not actually testing contribution or integration, what is it there for?
Lord Dubs: Just to be anecdotal, in questions in the Lords some years ago I asked a couple of these questions to the Minister. It was unfair. She answered one; she could not answer the other one. I said, “These are impossible. Who would know the answers to these?” Do you agree that having some sort of “Life in the UK” test is a good idea?
Barry O’Leary: You could make things about the citizenship process really positive. There is one change that we did quite a long time ago. You used to be able to just go and swear your allegiance in front of a lawyer. It was under David Blunkett, who was the Minister then; he is Lord Blunkett now. He introduced a ceremony. Instead of just signing this thing, you went to a ceremony and you actually all had to get together. You saw all the other people become British citizens that day. It was part of the system. That works really well. That engenders a good feeling and integration. There could be something done. I do not have the answer, I have to say. I cannot think off the top of my head, but it would be an interesting thing for people to look into. People are already paying about £150 to do the test, so there are some funds there, given that people are having to pay anyhow.
Q39 Baroness Prashar: What would be the purpose of the citizenship test if it was designed to assess people’s understanding of the British system, the ability to integrate, and the values? Do you think there is a purpose in designing a test that actually tested allegiance to the values of this country?
Barry O’Leary: There might be, but I would probably not necessarily have it as a test. I would have it as an attendance, so it is more about just teaching people. You could maybe assess it afterwards, but at the moment it is just a test.
Baroness Prashar: Yes, the current one is not fit for purpose.
Zoe Bantleman: I agree. We do not necessarily need a test. There are other ways of doing it. What people have shown—especially under the new settlement proposals, if they are put into practice—is that they have lived here. Year after year they have been able to navigate the system, to meet all the requirements, to understand them, and to go through the whole process.
Let us not forget that many people will be giving up their other citizenship in order to take on British citizenship. That is already a huge sign of allegiance and their willingness to remain in this country and make it their home. Even that is an element that we are testing in citizenship, as to whether they wish to make the UK their home or some other place their home.
I do not think that we necessarily need a test. There are other ways in which we can look at whether someone is integrated and is part of our society and community. We already have a system in place that does that, so this is an unnecessary hurdle.
Q40 The Chair: Has either of you been caught speeding?
Barry O’Leary: No.
Zoe Bantleman: No.
The Chair: That is a great shame. I have. One of the things that you will therefore not have experienced is that you can avoid getting points on your licence by going on a course and doing an assessment. Everybody I have spoken to who has done it—me included—thinks that they are absolutely the best thing that whichever Government introduced them had ever done. I went away from it feeling that I had become a better driver because of it. At the same time, I knew I had been punished, because I had to go and take time to do it, and so on, and I had to pay a fee instead of the fine.
It has always struck me that a course like that, which I think is what Baroness Prashar is hinting at, is a mixture of both. There is time where you discuss British values and all the other things that others have talked about, and at the same time you are still ultimately required to be given a stamp of approval by the person running the course. That is the sort of thing I know a number of people have been talking about. Would that be your feeling?
Barry O’Leary: I would support something like that, yes.
Zoe Bantleman: Yes, something that is not a short-term memory game seems very sensible. One thing I would add is that, if the test is refreshed and a new test is put in place, we need to be careful that people have enough time to take this course or test before their leave expires. Otherwise we are talking about people needing to have an extension of their permission before they can settle, because they cannot meet all the relevant requirements.
The Chair: Thank you. This has been an absolutely fascinating session. As you have discovered, we could have kept you here for hour upon hour, and we would all have benefited from that, had we done so. I know that you have already agreed—because I asked you earlier—to write to us on a number of various issues and with anything else you think we could benefit from.
My final request is this: at the end of this work that we do, we will have to come up with a number of recommendations. We would be very pleased to have any thoughts of what would be helpful recommendations for committee members to consider. On behalf of the entire committee, thank you to both of you.
