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Background


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, if you are an EU citizen and want to stay in the UK beyond 31 December 2020, you and your 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 immigration system as non-EU nationals.


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 or 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 transferring EU nationals from an immigration system which currently works into the same system as non-EU nationals, which is dysfunctional and chaotic, with a long history of incorrect decision-making.


JCWI believes that this Bill represents a missed opportunity to reform current Immigration law and restore fundamental rights to migrants. 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.

NC2: Children in Care


NC2 seeks to ensure that EEA and Swiss National children who are looked after in care, and children who are entitled to care-leaving support, are protected from the risk of losing their immigration status, granting them Indefinite Leave to Remain within the EU Settlement Scheme from the day the scheme closes for applications.


Centrally-collected data on the number of EEA care-leavers does not exist, but there are an estimated 5,000 EEA children currently looked after by Local Authorities in the UK. The lack of concrete data means it will be difficult for care providers to ensure that all children eligible for the scheme have applied by the deadline of 30 June 2021. Looked-after children may also be unable to provide the documentation required to prove their length of residence and nationality and will therefore struggle to secure Settled Status through the application.


Any child or care-leaver who fails to obtain Settled Status by the deadline of 30 June 2021 will be at risk of becoming resident in the UK without leave, and could encounter difficulties finding work, a home, or accessing vital services.


JCWI Supports this amendment which ensures that all EEA-national children in care will automatically retain secure immigration status, and that Local Authorities are supported in fulfilling their duty of care.


(NC3-NC10): An End to Indefinite Detention


NC3 – NC10 create a statutory time limit of 28 days for those subject to immigration control, establish statutory criteria for detention which reflect government policy and create a mechanism for automatic judicial oversight of decisions to detain after 96 hours.

There is currently no limit on the amount of time a person can be held in immigration detention in the UK. JCWI supports these amendments to bring an end to the use of indefinite detention.


NC13 + NC20: No Recourse to Public Funds


NC13 and NC20 seek to protect EEA Citizens from being denied access to public funds. Under most visa categories, migrants who are legally in the UK, taking up employment and paying tax are unable to access publicly funded support including Universal Credit, Child Benefit, Carers’ Allowance and Disability Living Allowance among many others. The Home Office does not publish figures of how many people are affected by NRPF, but Migration Observatory estimates that 1.376 million people are currently subject to NRPF. The Children’s Society estimates that this includes many thousands of children, many of whom may have been born in the UK.

During the COVID-19 pandemic, as employment opportunities have reduced, migrants in this position have been unable to rely on the public safety net, despite making significant tax contributions. The Citizens Advice Bureau has recorded a 110% increase in people seeking advice about NRPF - 82% of these are from Minority Ethnic backgrounds, reflecting the policy’s disproportionate impact on minority communities.


Long before the pandemic, NRPF restrictions have been pushing working families into abject poverty, forcing them into unsustainable debt and homelessness or unsafe, overcrowded, insecure housing. It is notable that women fleeing abusive partners are not entitled to access mainstream refuges, and that children who are subject to NRPF conditions are not entitled to free school meals and thus go hungry. A recent report from the Children’s Society found that almost half of children with foreign-born parents live in poverty. This means over 100,000 children living in poverty, with parents reporting that they are unable to meet their children's most basic needs. 


Since the Covid-19 outbreak, this situation has considerably worsened, particularly for those in insecure employment or on zero-hours contracts. Many people, including migrants, have had their hours cut or have lost jobs completely, putting them in difficult financial circumstances. Without support, people are forced to work in unsafe conditions, cannot remove themselves from unsafe housing, and are unable to both effectively self-isolate and feed their families. Many of those in this situation are the essential workers on whom we all depend. Now, more than ever, it is vital that no one living in the UK is compelled to take on unnecessary, unsafe work at risk to their own or to the public’s health, and it is indefensible for essential workers to be left unsupported and unable to make ends meet.


The system for removing NRPF conditions was found to breach human rights protections in May, but migrants still have to prove that they are at imminent risk of destitution before they can get the conditions lifted.


JCWI supports these amendments, which would prevent EEA nationals from having to choose between their health (and the health of the public at large) and being able to feed and house their families. Furthermore, everyone living in the UK, whatever their immigration or employment status, must have access to public funds to ensure that they can weather the ongoing crisis.


NC14: Immigration Health Surcharge Exemption


NC14 seeks to ensure that future immigrants from the EEA and Switzerland who come to work in health or caring roles will not have to pay the International Health Surcharge – an additional cost that migrants must pay when applying to obtain or renew a visa. Just like British nationals, migrants already pay taxes, including national insurance. Asking migrants to pay an additional surcharge essentially means charging them twice in order to access the same NHS treatment as a British national.

The cost of obtaining or renewing a visa to come to or remain in the UK has increased exponentially over the past 15 years, rising on average 20-25% year on year and resulting in a situation where a simple application for an individual now costs many thousands of pounds.

In October 2020, the cost of the Surcharge is planned to increase from its current level of £400 per person per year, to £624 per person per year.

During the COVID-19 pandemic, the surcharge has become controversial. Migrants working in the NHS and migrant care workers are on the front line of the crisis and have particularly high death rates from the virus. They should not have to pay a Surcharge for the service they are providing. Reflecting public opinion, in May 2020, the government announced that it would exempt health and social care workers from the Surcharge.

JCWI supports this amendment as it puts the exemption announced by the government on statutory footing for EEA and Swiss nationals.


NC18 + (NC31 - NC32) + (NC25 – NC26): Ending the Hostile Environment


NC18 + NC31 and NC32 all seek to limit the scope of the Hostile Environment to protect EEA nationals from the same system which proved detrimental to Windrush nationals, and which applies to all undocumented migrants. A failure to register even 5% of eligible EU nationals could result in around 175,000 people losing, overnight, their legal right to reside in the country. At present, there is a risk that EU nationals who find themselves undocumented will be subject to these same provisions and will be denied access to housing, healthcare and public funds.


The ongoing COVID-19 pandemic puts the Hostile Environment into stark relief and makes clear that the collection of policies is dangerous, both for migrant health and the health of the wider public. Fear of seeking medical treatment, lack of access to safe housing, no recourse to public funds and exploitative working practices have meant that many migrants have been unable to keep themselves, and their families, safe and healthy and, in many cases, have been disproportionately exposed to the virus.


NC31 and NC32 recommend that EU nationals are not subject to the Hostile Environment until the Windrush Lessons Learned Review has been implemented. The government has committed to implementing the lessons from the review but has not yet set out a timetable to do so, nor has it committed to removing the Hostile Environment in its entirety. It is therefore vital that EU nationals are not subject to a system which has been proven to be in desperate need of reform.


NC25 and NC26 seek to repeal Right to Rent policy which forms a key plank of the Hostile Environment. The current policy requires landlords to check the immigration status of prospective tenants. Any landlord who is found to have rented to someone who does not have the required immigration status will face a fine of up to £3,000 or a criminal sentence. The scheme has been proven to directly cause racial discrimination for British citizens and migrants alike and was found to be unlawful by the High Court. The government has been unable to provide evidence that the Hostile Environment achieves its stated aims and has repeatedly failed to evaluate the impacts on BME communities. It is vital that the Right to Rent policy is repealed with immediate effect and that EU nationals are not subject to the provision.

JCWI supports these amendments as they would protect EU nationals from being denied access to vital support services, safe housing and employment. JCWI further recommends that the Hostile Environment is repealed in its entirety.


NC19 + (NC27-NC28): Data Sharing and the Hostile Environment


NC19, NC27 and NC28 all seek to limit the data shared between the Home Office and other public servants. The government relies heavily on the existence of criminal offences for migrants coupled with the crime exemption set out at Schedule 2, paragraph 2 of the Data Protection Act 2018 in conjunction with a mix of statutory and common law powers to share data, to operate a series of bulk data-sharing agreements. These agreements see confidential personal information collected by essential public services shared with Home Office immigration enforcement teams, all too often without a person having the right to know about this sharing, or to consent or object to it.


The threat of data-sharing with immigration authorities has led to a climate of fear stopping migrants from accessing vital support services. There is significant evidence that both NHS charging and data-sharing between the Home Office and the Department of Health and Social Care stops migrants from accessing healthcare, even in the case where exemptions exist for infectious diseases. Similarly, data-sharing with police services has led to victims of crime being handed over to immigration enforcement. The approach stops vulnerable people from reporting crimes, including victims of sexual assault and domestic violence.

 
JCWI supports these amendments to ensure that there is a clear firewall between immigration enforcement and public services.


NC22 + Amendment 33: The Minimum Income Requirement


NC22 seeks to suspend the Minimum Income Requirement (MIR) which British citizens and their non-EEA partners must currently meet in order to live together in the UK, for as long as the Coronavirus Act 2020 remains in place. Whilst concessions made in June 2020 for families concerned about meeting the income requirement during the pandemic are welcome, they still leave out thousands of families who, for example, faced a drop in income before March 2020. Applicants are forced to continue to work in unsafe conditions in order to ensure that they meet the MIR. Suspending the MIR for the duration of the pandemic is the only way to ensure that this does not happen, and that no family fears being separated because they experience a drop in income due to COVID-19.


Amendment 33 would ensure that British citizens and settled residents can sponsor a partner from the European Union to live with them in the UK after the end of the transition period provided that the sponsor and their partner are able to maintain themselves without recourse to public funds.


JCWI supports these amendments to ensure that families are not separated as the result of a financial requirement. At the least, the MIR should be suspended immediately for the duration of the COVID-19 pandemic, to ensure that nobody will be disadvantaged if their income drops due to the pandemic.


NC38 + Amendment 32: EU Citizens Rights


NC38 and Amendment 32 seek to ensure that EU citizens automatically have rights under Article 18(4) of the Withdrawal Agreement (and equivalent provisions in the EEA EFTA and Swiss citizens’ rights agreements) rather than having to apply for them, and to ensure that for the overwhelming majority, that status is permanent.


EU Citizens who have not applied for status will have no legal basis to remain in the UK after the grace period (currently ending 30 June 2021), no matter how long they have lived in the UK. They will be liable to removal and will be exposed to the Hostile Environment. It is vital that no EU national is left to fall through the gaps and that they have their rights protected.


NC38 additionally seeks to ensure that EU citizens are given physical proof of status under the EU Settlement Scheme, and do not have to rely on a digital-only status to negotiate the ͚Hostile Environment.


JCWI supports these amendments to ensure that EU nationals do not fall out of status and are not left exposed to Hostile Environment.