The Minister of State for Immigration, Caroline Noakes MP, appeared before the Committee for Exiting the EU. I was able to ask her about immigration post Brexit and the Independent Monitoring Authority.
The Government is obliged to create an Independent Monitoring Authority (IMA) to resolve post-Brexit disputes about status of EU citizens in UK. But an IMA is nowhere to be seen and the clock is ticking. The Minister promised me she'll write to Brexit committee so that we can update the 3 million EU citizens living in the UK.
Stephen Kinnock: I want to pick up on Mr McFadden’s question there. He referred to point i in the Chequers declaration but I was wondering about your thoughts on point h, where it says that free movement will be ended, “Giving the UK back control over how many people enter the country”. Is that a commitment, therefore, that there will still be a quota, a total number of people, the Government will still have a target number for how many people enter the country?
Caroline Nokes: It does very clearly say that free movement will end, but it says it will give the UK back control. It does not put a number on it but that is an important principle, that we will be in control of our own borders, we will be able to determine our own immigration policy. The Prime Minister has been very clear that she wishes to see net immigration reduce. It has been included in successive party manifestoes, which have been successful at general elections, and that is something that I stand by.
Stephen Kinnock: Just to clarify, it very clearly says there it will, “Give control over how many people enter the country”. There must, therefore, be an upper limit. The Government will be continuing to set a ceiling on the number of people who come into the country.
Caroline Nokes: It does not state a number there and, of course, that will be a matter for future immigration policy.
Stephen Kinnock: Yes. Assuming, then, that a number will be set, will that be based on some sort of points-based system, a quota? Will this be entirely quantitative or will it be qualitative? Will there be a set policy based on the type of people and the type of skills we want to have coming into the country or will it be purely a number?
Caroline Nokes: We have a long tradition of wanting the brightest and the best people to be able to come here. We do not set a limit on the number of students who can come here to study. These are all very much matters for the Immigration White Paper, which will be published after we have received the expert evidence from the Migration Advisory Committee, which is reporting in September.
Stephen Kinnock: Thank you. Moving on to the point more about settled status and dealing with the EU citizens who are already in the country, I want to ask you about dispute resolution. What do you see as the institutional framework for resolving disputes between the UK and other EU countries around the status of an EU citizen who is based in this country?
Caroline Nokes: The Withdrawal Agreement makes it explicitly clear that there has to be an ability for independent arbitration. Until such time as we have established that, we would hope to be able to use the Chief Inspector of Borders in order to be able to do so, but there will need to be an independent arbitrator in due course. We will set out more details.
Stephen Kinnock: That independent arbitrator will follow the guidelines of the European Court of Justice?
Caroline Nokes: We will be setting out details of how they will operate in due course.
Stephen Kinnock: Can you envisage any way in which the European Court of Justice’s guidelines would not be the de facto framework for this?
Chair: We can now resume the session. Technically, we are in sub-committee but we agreed to cover that this morning because we were not quite sure how the votes were going to affect us. Minister, I think you were about to answer a question. Can you recall what the question was?
Caroline Nokes: The question was about the individual applicants and the Independent Monitoring Authority. You may have moved into subcommittee. Can I say I am clearly left with the elite who are interested?
Chair: Flattery will get you everywhere.
Caroline Nokes: I was going to say hard-core. Then I thought, “No, I will be really nice and try flattery as an option”.
The Withdrawal Agreement says there will be an independent monitoring authority to monitor the Government’s implementation. That requires primary legislation to set up, so obviously we will have to do that. In the meantime, the EU Commission will continue to monitor both our implementation but of course the implementation of the EU 27 and how they are treating British citizens who are living in EU member states.
The Withdrawal Agreement is obviously incorporated in UK law, meaning that applicants can rely on it directly in front of UK courts to check that the Government is correctly implementing their rights. The Independent Monitoring Authority cannot directly refer matters but will take account of CJEU law for eight years from March 2019. UK courts may refer issues to CJEU.
Stephen Kinnock: Article 152 of the draft Withdrawal Agreement is what lays out that there is going to be this Independent Monitoring Authority, the IMA. Recently in a meeting between the Home Secretary and Guy Verhofstadt, the Home Secretary pointed out that in fact the IMA is, of course, not going to be up and running before 29 March 2019. Instead, the Independent Chief Inspector for Borders and Immigration, the ICIBI, is going to play that role temporarily.
Caroline Nokes: Yes.
Stephen Kinnock: Are we not looking at a major risk here—based on everything not being agreed, and nothing is agreed until everything is agreed—that you will not have the IMA set up before exit day and therefore you would be in breach of Article 152 of the Withdrawal Agreement?
Caroline Nokes: I think we are content that the Independent Chief Inspector of Borders and Immigration can act in the meantime in this role.
Stephen Kinnock: Even after exit day?
Caroline Nokes: Even after exit day, but we are conscious that that is suboptimal. It does take primary legislation. You will be conscious that that is not a quick process in this place, so we have to have time to set up the Independent Monitoring Authority.
Stephen Kinnock: The ICIBI is not constituted to have the powers and responsibilities that the IMA is supposed to have in the draft Withdrawal Agreement. You would be trying to put a square peg into a round hole.
Caroline Nokes: Our default position is that we wish to grant people settled status. We have been very clear on that, and this is a system that is set up for people to succeed not to fail. We want to keep those who do not go through the process successfully to an absolute minimum. The Withdrawal Agreement says that the Independent Monitoring Authority must be set up from 2021.
Stephen Kinnock: The ICIBI’s role is just to carry out inspections, whereas with the IMA you would be looking at conducting inquiries, receiving and dealing with complaints and, crucially, bringing legal actions before a UK court or tribunal. The ICIBI is simply not geared up to do any of that. How are you going to create—you will be in breach of 152, will you not?
Caroline Nokes: The Withdrawal Agreement says that the IMA must be set up by 2021. In the interim we think that the Independent Chief Inspector of Borders and Immigration can carry out that role.
Stephen Kinnock: You will need them to have a radical change in the terms of reference and scope of operations of the ICIBI.
Caroline Nokes: We think that it is feasible that it carries out the role in the interim until such time as we can pass primary legislation to put the IMA into law.
Stephen Kinnock: Is work going on, then, to increase the capacity and capability of the ICIBI?
Caroline Nokes: It is fair to say that across the Immigration Directorate we are very focused on the settled status scheme and making sure that we have this as a process that is up and running. As I said, we do not want people to fail, we want people to succeed, but we are currently in the process of defining the IMA role. That will include what changes may have to be made in the interim to the ICIBI.
Stephen Kinnock: You will understand, obviously, that the 3 million EU citizens living here are very keen to have resolution and clarity on so many of these issues. That is why Guy Verhofstadt has written specifically to the Home Secretary on this point. Will they not be left looking at a cliff edge because there will not be a resolution mechanism in place because the ICIBI is simply not capable of carrying out these functions? Could you perhaps offer to write to the Committee and update us on what work is exactly happening for the ICIBI to be ready, willing and able, from 29 March, to take on this role, so that we can give assurance to the 3 million?
Caroline Nokes: I am very happy to provide an update on what work is going on, and can do that in writing.