Immigration Bill – the issues

Update: this Bill was passed at the 2nd Reading  Download this briefing

The Immigration and Social Security Co-ordination (EU Withdrawal) Bill will end the EU’s rules on free movement of persons into the UK, bringing EEA and Swiss nationals and their family members under UK immigration control. This means they will require permission to enter and remain in the UK.

In line with the draft Withdrawal Agreement, an EU citizen wanting to stay in the UK beyond 31 December 2020 and their family members will need to apply to the EU Settlement Scheme.  EU citizens resident in the UK for more than 5 continuous years will be eligible for settled status. EU citizens resident for less than 5 continuous years will be eligible for pre-settled status.

Any EU citizen who does not register for settled status within the timeframe set out by the Withdrawal Agreement will be considered undocumented and fall under the same Hostile Environment as non-EU nationals, and will be liable to criminalisation, removal and deportation.

However, the Immigration Bill does not set out what the future UK system will look like. Instead, the Bill gives Ministers powers to modify primary or secondary legislation as appropriate in consequence of, or in connection with, the Bill and through delegated legislation– these powers are commonly known as ‘Henry VIII’ powers. The Government claims that these powers are ‘usual’ and will enable the Government to align existing immigration laws with those for non-EEA nationals.

The Government has not set out any provisions within the Immigration Bill nor in the White Paper to resolve urgent issues highlighted by both the Windrush and the DNA scandals – with particular concern about the extension of the “Hostile Environment” to EU nationals and its continued application to non-EU nationals.

There are broad concerns from legal providers and civil society about the transference of EU nationals from an immigration system which currently works and into the same system as non-EU nationals which is dysfunctional and chaotic, with a long history of incorrect decision making.

The COVID-19 crisis has shown clearly how both the Hostile Environment and failures within the Home Office have put migrants at significant risk and exposure to the virus [1]. This includes fear of accessing healthcare, lack of access safe housing, no recourse to public funds and an inability to stop working or to self-isolate. This is not only detrimental to the health of migrant communities, but the health of the wider public is also put at risk.

Similarly, the COVID-19 crisis has shown how migrant work is currently undervalued and described as “low-skilled”, despite being the backbone of our communities. Migrant workers in key or essential roles are not only disproportionately exposed to the virus but are also put at greater risk due to structural inequalities within the immigration system. JCWI believes that this Bill represents a missed opportunity to reform current immigration law and level-up the rights of migrants by restoring fundamental rights.

JCWI firmly believes that if the Immigration Bill is enacted in its current form, it will diminish the role of Parliament in an area of policy that is already in need of far greater scrutiny.

Henry VIII Clauses

Part 1 Section 4 of the Bill contains numerous and wide-ranging provisions to enable the Government to repeal or amend the Bill after it becomes an Act of Parliament. Scrutiny of secondary legislation is often perfunctory, and Parliament gets, at most, the opportunity to vote for or against the measure – no amendment is possible.

JCWI does not consider it acceptable for the Government to introduce a Bill which does not set out proposals for comprehensive reform to the immigration system, and instead, asks Parliamentarians to vote on a “blank cheque”. The Bill gives the Secretary of State powers to introduce wide-ranging changes to the immigration system without substantive oversight.

JCWI urges Parliamentarians to protect fundamental rights by refusing to hand the Home Office a blank cheque in the making of immigration policy.

In addition, immigration law is exceedingly complex and scattered across several Acts of Parliament[1]. Repeated amendments to existing acts and a stream of changes to the Immigration Rules through secondary legislation cause significant problems, with little scrutiny.

Recommendation: This Bill should require the Government to simplify current Immigration law.

Recommendation: This Bill should make provision to restrict the power delegated to the Secretary of State which enables the Secretary of State to make immigration policy by way of Immigration Rules.

Points-Based System

All we know at present about the new immigration rules set to be introduced through secondary legislation following the passage of this Bill is contained in a Policy Statement on a ‘points-based’ system. We are concerned that this represents a merely cosmetic change to the system that will not be relevant to the vast majority of migrants to the UK. Only people earning a high salary, or educated to PhD level are included in this points-based scheme. Meanwhile, questions over the detail for settlement requirements, fees, digitisation, immigration enforcement and the Hostile Environment, family reunification, asylum and low-paid migration – all of which currently face a dysfunctional system – have not been addressed.

We are particularly concerned about proposals for sectoral visa schemes that are rife with risks of exploitation and increasing our undocumented population. A full briefing on the new system can be found here.

EU Settled Status

The Government has an extremely limited timeframe to complete the largest program of immigration documentation the United Kingdom has undergone to date. Roughly 4 million people resident in the UK before 31 January 2020 (in the case of no-deal) or 31 December 2020 (in the case of a deal) will need to apply for pre-settled or settled status under a brand-new application process.[2]

The transition from free movement to settled status has been designed and implemented in such a way that will create a population of EU citizens and non-EU family members with no status or rights.

JCWI is particularly concerned about the limited timeframe in which EU nationals and non-EU family members must apply for settled status. If they have not applied by December 31 2020 (in the case of no-deal) or 30 June 2021 (in the case of a deal) they will fall out of status overnight and become vulnerable to the Hostile Environment.

People who have lived and worked in the UK legally for years will be criminalised for working, driving or accessing vital benefits, and could face detention and enforced removal. Landlords and employers will face fines for renting to or employing EU nationals without status.

The Home Office has indicated that it will take a flexible and proportionate approach to those who have good reasons for not applying by the deadline, but has yet to clarify what this means[3]. Historically, the Home Office’s threshold for ‘good reason’ for late applications has been incredibly high, and immigration Minister Brandon Lewis confirmed in October 2019 that those who don’t apply in time will be vulnerable to immigration rules, including deportation.[4]

Securing settled status will be more difficult for certain groups of people: those who lack awareness of the process or the need to apply, are vulnerable for different reasons (such as older people, disabled people, looked-after children, Roma communities or adults with limited mental capacity), have difficulty navigating the digital application system, or cannot provide evidence of identity or residency in the UK.

The Home Office is granting a temporary (five year) status – known as pre-settled status – to individuals who can prove short periods of residence in the UK but can’t show that they’ve been here for five years continuously. Those granted pre-settled status will then have another five years to build up further evidence of residence. If they cannot evidence their residence in the UK within that time period, they will not be eligible for settled status and pre-settled status cannot be renewed.

Many of those granted pre-settled status will have been granted temporary status because they are particularly vulnerable and unable to provide evidence or documentation for long-term residency in the UK. Vulnerable groups who struggled to prove their residence the first time around will likely face these same problems in five years’ time. Through not creating the option for renewal of temporary status, the Home Secretary has created a cliff-edge scenario and an arbitrary barrier to individuals remaining regularised, rights-holding residents. Almost half of all applications to-date have been granted pre-settled status, meaning there is a huge number of people potentially facing another cliff-edge within the next five years.

The Government has denied EU citizens the right to physical documentation. We know this will lead to discrimination and are already hearing about EU citizens facing unlawful discrimination for not having obtained settled status. All other migrants and British citizens can choose to obtain physical documentation to prove their status. We cannot rely on an untested online database as the only means of evidencing status and rights, and it is unacceptable for the Home Office to use EU citizens in their experiments for a digital immigration system.

Recommendation: The Bill should make automatic provision for all EU citizens and non-EU family members, and other individuals protected by EU law, currently living in the UK to be granted automatic settled status by order of the Home Secretary.

Recommendation: The Bill should make it compulsory that all EU citizens and non-EU family members eligible for the EU Settlement Scheme can obtain physical documentation as proof of their settled status.

Hostile Environment

The Government has set out proposals for a 6-month grace period for EU nationals which extends the programme for settled status until June 2021. During this period, EU nationals who have not been granted settled status will be subject to the current “hostile environment” provisions which exist for non-EU nationals.

The Immigration Bill makes no remedy to “Hostile Environment” provisions which proved detrimental to Windrush and Commonwealth nationals and has been shown to further increase the vulnerability of migrant communities during a crisis. The White Paper sets out the Government’s ongoing commitment to the “Hostile Environment” policies despite widespread concerns about its application, and there have been no attempts to remedy this during the outbreak of COVID-19.

The “Hostile Environment” outsources responsibility for immigration enforcement on to businesses, public services and ordinary citizens and its structure encourages the targeting of ethnic minorities and those who look or sound ‘foreign’. Those without documentation are denied access to housing, healthcare, employment benefits and bank accounts. Given that most people in the UK without documents have a legal right to be here, it inevitably causes huge amounts of harm to people who cannot and should not be termed ‘illegal’.

JCWI is extremely concerned that the Government has made no attempt to resolve the issues highlighted by the Windrush scandal[5] and the COVID-19 pandemic, and that the Bill makes no provision to end the “Hostile Environment” policies, instead extending the policies to EU nationals.

Recommendation: The Bill should make provision to bring an end to the Hostile Environment.

Recommendation: EU Nationals without documentation should not be subject to the “Hostile Environment” during the 6-month grace period. 

Recommendation: EEA and Swiss nationals’ resident in the UK and their family members should not have their rights removed until the Home Office reviewed and resolved all issues highlighted by the Windrush scandal.

Conclusion

The Immigration Bill represents an opportunity to rectify flaws in the UK’s immigration system. Despite the Windrush scandal and the COVID-19 pandemic, the Government has not taken the chance to fundamentally reform the immigration system which is chaotic, dysfunctional and dysfunctional and jeopardises the health and safety of migrant communities. Instead, it is granting itself the power to subject at least three million more people to to this very same system with minimal scrutiny.

JCWI firmly believes that this Bill is damaging to the fundamental rights of all migrants both living in the UK and those who will arrive in future.

[1] https://www.freemovement.org.uk/how-complex-are-the-uk-immigration-rules-and-is-this-a-problem/

[2] https://www.gov.uk/settled-status-eu-citizens-families

[3]https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/718237/EU_Settlement_Scheme_SOI_June_2018.pdf

[4] https://www.theguardian.com/politics/2019/oct/10/eu-nationals-lacking-settled-status-could-be-deported-minister-says

[5] http://jcwi.org.uk/news-and-policy/dossier-of-failure-windrush-and-hostile-environment

https://www.jcwi.org.uk/immigration-bill-2020-second-reading-briefing