Accession (Immigration and
Worker Authorisation) (Amendment) Regulations 2011
The Committee consisted of the following Members:
Binley, Mr Brian (Northampton South) (Con)
† Brake, Tom (Carshalton and Wallington) (LD)
† Bruce, Fiona (Congleton) (Con)
† Bryant, Chris (Rhondda) (Lab)
Cunningham, Mr Jim (Coventry South) (Lab)
† Doyle-Price, Jackie (Thurrock) (Con)
† Duddridge, James (Lord Commissioner of Her Majesty's Treasury)
† Gapes, Mike (Ilford South) (Lab/Co-op)
† Green, Damian (Minister for Immigration)
† Huppert, Dr Julian (Cambridge) (LD)
† Munn, Meg (Sheffield, Heeley) (Lab/Co-op)
Paisley, Ian (North Antrim) (DUP)
† Reevell, Simon (Dewsbury) (Con)
Roy, Lindsay (Glenrothes) (Lab)
Rutley, David (Macclesfield) (Con)
† Wilson, Phil (Sedgefield) (Lab)
† Wollaston, Dr Sarah (Totnes) (Con)
Lydia Menzies, Committee Clerk
† attended the Committee
First Delegated Legislation Committee
Thursday 12 January 2012
[Albert Owen in the Chair]
Accession (Immigration and Worker Authorisation) (Amendment) Regulations 2011
8.55 am
The Minister for Immigration (Damian Green): I beg to move,
That the Committee has considered the Accession (Immigration and Worker Authorisation) (Amendment) Regulations 2011 (S.I., 2011, No. 2816).
The Government announced on 23 November that the transitional restrictions currently applied in respect of Bulgarian and Romanian nationals’ access to the labour market will be extended to the end of 2013. The regulations achieve that by extending the transitional period during which the current regulations apply until the end of 2013. The amending regulations make no other changes to the current regulations.
The context of the Government’s decision is that the terms of the treaty governing the accession of Bulgaria and Romania to the European Union provide for the existing member states, if they choose, to regulate access to their labour market by nationals from the Republic of Bulgaria and Romania. That is a permitted derogation from the EU’s free movement rules. Such restrictions may be applied for up to the maximum of seven years, but may only be maintained beyond five years when there are—to use the words of the treaty—“serious disturbances to its labour market or the threat thereof”.
The Government are committed to reducing net migration to the United Kingdom. It is, of course, the case that, after 2013, Bulgarian and Romanian nationals will be free to enter the United Kingdom for the purpose of work in the same way as any other EU national. The free movement of workers within the EU is a fundamental element of the internal market, and it is one that brings benefit to the United Kingdom not least as an exporter of workers to other member states.
However, the United Kingdom experienced a very significant influx of workers from the new member states that joined the EU in May 2004. It has been sensible both in the light of that experience and changed economic circumstances to take a more gradualist approach to subsequent accessions. The Government are clear that they will apply transitional restrictions to nationals of countries joining the EU in the future.
Similarly, for as long as it remains legally possible and proportionate for the United Kingdom to apply transitional restrictions on Bulgarian and Romanian workers—and there is a compelling labour market case for doing so—it will be prudent for the restrictions to be maintained. The United Kingdom has applied restrictions on Bulgarian and Romanian nationals’ access to the labour market, since those countries joined the EU on 1 January 2007.
Whereas nationals of those countries joining the EU in May 2004 were simply required to register their employment under the worker registration scheme, Bulgarian and Romanian nationals have been subject to more substantive restrictions on permission to take employment in the United Kingdom. Their effect is to preserve the level of access to the United Kingdom’s labour market, which Bulgarian and Romanian nationals enjoyed when they joined the EU. The standstill clause in the treaty means that we cannot impose controls that are more restrictive than those that were in place on 31 December 2006.
Under the current regulations, Bulgarian and Romanian nationals are required to obtain authorisation from the UK Border Agency before they take employment in the United Kingdom. That will normally require the employer to apply for a work permit in respect of the job in question, and such a permit will normally only be issued in respect of skilled employment and where resident labour is unavailable to fill the vacancy. Bulgarian and Romanian workers are also able to obtain authorisation to take lower skilled employment in the agricultural and food processing sectors under the quota-limited seasonal agricultural workers scheme and the sectors-based scheme.
As the terms of the derogation require, the requirement to obtain work authorisation ceases when a Bulgarian or Romanian worker has completed 12 months’ authorised employment in the United Kingdom. The regulations also provide for the most highly skilled to be granted free access to the labour market from the outset. The effect of the current restrictions is that a Bulgarian or Romanian national who intends to take employment in the UK will only have a right to reside as a worker if they are working in accordance with the restrictions.
However, the restrictions do not and cannot interfere with the ability of a Bulgarian or Romanian national to exercise a right to reside in the UK on some other basis—for example, as a student or for the purpose of engaging in business. They ensure that labour migration from Bulgaria and Romania reflects the UK’s economic needs by restricting employment authorisations to skilled work or employment in sectors where there are well-established shortages of labour.
Furthermore, the numbers given permission to work under the arrangements have not increased since the date of accession. Excluding participants in the seasonal agricultural workers scheme, the number of Bulgarian and Romanian nationals issued with accession worker cards in 2010 was 2,616 compared with 2,776 in 2008, and 2,097 in 2007.
As I have noted, the United Kingdom can maintain its existing restrictions only in circumstances of serious labour market disturbance. The Government have been concerned to examine fully whether there is a labour market case for extending the restrictions. I therefore asked the independent Migration Advisory Committee to consider whether there is serious disturbance in the United Kingdom’s labour market and whether maintaining restrictions would assist in addressing such disturbance. The Committee’s findings, which it published on 4 November, were clear. On the question of whether the labour market is seriously disturbed, it examined the market’s performance against a number of indicators and concluded that it was performing poorly relative to the period before the last recession. On that basis, it is in a state of serious disturbance.
The Committee also concluded that an increased inflow of Bulgarian and Romanian nationals might have negative impacts on the labour market, particularly if it coincided with a change in the inflow’s composition, and that lifting the current restrictions would increase that risk.
On inflow composition, a particular risk is that lifting restrictions might increase the number of Bulgarian and Romanian nationals entering lower-skilled occupations, in which migrants are more likely to substitute for, rather than complement, the resident labour force. The Committee acknowledged that the extent to which maintaining restrictions would assist in addressing such disturbance is subject to considerable uncertainty and that it would not be sensible to attempt to put a numerical range around the likely inflow if restrictions were lifted. The Government would be equally cautious of attempting to do so. Nevertheless, the conclusion to be drawn from the Committee’s findings is that a decision to maintain the restrictions would be both justifiable under the derogation in the treaty on accession and a proportionate response to current labour market disturbance. Accordingly, the Government have decided that the restrictions should be maintained.
Dr Julian Huppert (Cambridge) (LD): Will the Minister give way?
The Chair: When the Minister has finished.
Damian Green: I am happy to give way if you would like, Chairman.
A number of other member states, including Germany, France, Spain, the Netherlands, Belgium and Austria, have announced that they, too, will maintain their restrictions. That is significant, and not just because it means that the United Kingdom is not out of step with key EU partners on the issue.
Kate Hoey (Vauxhall) (Lab): Will the Minister give way?
The Chair: I will make a ruling: I will call the debate when the Minister has finished his opening remarks.
Damian Green: As the Migration Advisory Committee pointed out in its response, the risk of greater inflows would be highest if the United Kingdom lifted its transitional measures but other member states maintained theirs.
In conclusion, the Government believe that extending the current restriction to the end of 2013 is proportionate and the right response to current labour market conditions. I detect that there is interest and will be questions, which I hope to answer in my closing remarks. I commend the measure to the House.
9.3 am
Chris Bryant (Rhondda) (Lab): It is a delight to sit under your chairmanship, Mr Owen. I have not had the privilege of doing so before, so I am pleased.
The Government are following the Labour Government’s policy, so it would be churlish of me to make any complaints about it. I have one question about the
future and one about the order. Unless there are changes in how the EU does its businesses, at the end of 2013, it is likely that we will be unable to extend the transitional period again. What estimate have the Government made of how many people might come in? I note that they were cautious about making such estimates if we were not doing this, but perhaps he will throw caution to the wind and give us some idea of how many might come in after 2013.Secondly, on the process, the Minister skirted over the fact that the provisions lapsed on 31 December 2011, and that the Government have had to use an emergency process to comply with section 2(7) of the European Union (Accessions) Act 2006, which states:
“No regulations may be made containing…any provision the power to make which is conferred by this section unless—
(a) a draft of the regulations has been laid before Parliament and approved by a resolution of each House; or
(b) the regulations contain a declaration by the Secretary of State that the urgency of the matter makes it necessary for the regulations to be made without that approval.”
What the Government have done under the order is to allow for such measures to be retrospective to 31 December last year. In other words, from then until now, unless the Government had declared their urgency, the provisions would have lapsed and, at the moment, Romanians and Bulgarians would be able to come into the country quite easily.
However, the Government are relying on using section 2(8) under the same Act, which sets out that the resolution must be passed by both Houses within 40 days of it having been tabled. Well, 40 days have already lapsed since the order was laid before the House, so I am not entirely sure that the legislation is functional. In the past 11 days, there have been no provisions, so why did the Migration Advisory Committee take such a long time to produce its report? Why did the Minister table the measure only at the end of November, when I am sure that the Government knew two years ago when they came to power that they had every intention of introducing a further two-year set of provisions? In essence, we are now being presented with a fait accompli. The Minister did not say in his speech anything about the urgency of the process, which is why we have to subvert the usual way of doing our business.
9.6 am
Dr Huppert: I am interested in knowing a bit more from the Minister about what will happen in 2013 and whether the same process used by the Migration Advisory Committee will be followed. I certainly hope that we will not continue to run such measures over and will not have serious disturbances to our labour market in 2013, and that everyone in the House agrees. I need clarity about the 2013 process, how it will be decided, how the decision will be made and whether it is hoped that we will not have to renew such measures.
9.7 am
Kate Hoey: My point is similar to that made by the hon. Gentleman. I want to probe a little further and to check what will happen in 2013 if labour market conditions remain the same. Will the provisions continue and, if
not, why not? Can the Minister give us the reasons for the provisions not continuing? We might want to consider what can be done about the position.9.8 am
Mike Gapes (Ilford South) (Lab/Co-op): The Minister referred to what happens in other European Union countries. The vast majority of Romanian and Bulgarian migrant workers go to southern Europe, particularly Spain and, clearly, they will be affected by the downturn in the Spanish economy. What assessment have the Government made of the fact that, because of free movement within the European Union, it is possible for people to come to this country without having a work visa because they do not need one, or a work authorisation, and not to be employed?
What measures are being taken by the Government to ensure proper monitoring of the position, given that there are some disreputable employers in this country who pay people cash in hand, below the minimum wage, and buy things from scrap dealers and others who might be working illegally in this country?
9.9 am
Damian Green: I thank all those who have asked questions and have made contributions to the debate. I shall deal with them in turn. The hon. Member for Rhondda invited me to throw caution to the wind and predict the numbers that might come from Bulgaria and Romania in 2013. I decline that invitation respectfully because, as has been said, it is difficult at this stage to begin to assess what the British labour market will be like and also exactly the benefits of the much better training and apprenticeship schemes that the Government are introducing, which will ensure that, in future, British workers are much better trained to take the vacancies that will arise in the British labour market. It would not therefore be sensible or prudent to essay guesses—they would be no more than that—about the numbers who might apply. However, I refer him to the point correctly made by the hon. Member for Ilford South, who said that in practice migrant workers from Bulgaria and Romania tend to go to Italy and Spain; in particular, the link between Romania and Italy is very strong.
I always admire the hon. Member for Rhondda for his fantastically detailed knowledge of both European treaties and parliamentary processes. He slightly over-egged the pudding by suggesting that the regulations were the result of an emergency. The truth is that there is a slight clash between substance and process, and substance should come first. It was important for MAC, which is an independent body, to do a proper and robust report on the state of the labour market. Essentially, the most important factor was that that report should be contemporaneous—describing the state of the labour market at the time that the House has to decide whether to extend the restrictions—and that is what has happened. I am happy to write to him about the timing of the regulations, if he so wishes.
Chris Bryant: I am not sure that that is legally sufficient for what the Committee is doing today. The Minister is asking us to agree to a statutory instrument, which
states at the beginning that it will come into force on 31 December 2011. We can only do that with a statutory instrument if, under the provisions of the 2006 Act, the Secretary of State makes a declaration“that the urgency of the matter makes it necessary for the regulations to be made without that approval”,
Damian Green: I think the hon. Gentleman has a peculiar definition of that not being done. I point out to him that this is not the first time—I know it is not, because I have sat on Delegated Legislation Committees—that statutory instruments have been brought into force after their commencement date. Indeed, it used to happen routinely when Parliament took much longer recesses than it does now. Nothing particularly unusual, and certainly nothing unique, is happening.
Simon Reevell (Dewsbury) (Con): My concern is that by laying the regulations before Parliament on 25 November, they properly came into force on 30 November and ran for 40 days from 25 November, but this process has to take place during that 40-day period. The regulations were in force for 40 days from 25 November as effective legislation, but I want to be reassured that those 40 days are not the same as the 40 working days that count for the purposes of this process, and which we are within. If that figure is not 40 working days, we are beyond the specified period.
Damian Green: The legality or otherwise of the process is the root of the comments made by both my hon. Friend and the hon. Member for Rhondda. The point is that the declaration of urgency is made in the regulations, so there is certainly legal cover.
Damian Green: I sense another—I hope, helpful—intervention.
Chris Bryant: Unfortunately, I think it will be helpful. The Minister is right and wrong but, none the less, the process has to have happened within 40 days. Section 2(9) of the 2006 Act states that 40 days
“means 40 days computed as provided for in section 7(1) of the Statutory Instruments Act 1946”.
Damian Green: I am glad that that has clarified the situation tremendously. I hope that satisfies my hon. Friend the Member for Dewsbury, and I am grateful to the shadow Minister for his explanation.
Several hon. Members raised concerns about 2013 and about having to go through this process again. We cannot and will not. The treaty, which the previous Government signed, states that there is a seven-year transition period and that there has to be a break period at five years—the basis, as it were, is five years—but if there is serious disturbance in the labour market the transitional restrictions can be extended for another two years, which is what we are doing today. It is conceivable that the treaty could be amended—talk of
treaty amendments is in the air; let us see what happens—but in the current treaty, as it stands, there is no provision for this procedure to be repeated in 2013.Kate Hoey: I thank the Minister for clarifying that. I am sure that the public will be very interested in that. Does he think it possible that that might be one of the elements of control that the European Union has over this country to make its own decisions? Is it something that we might want to get back?
Damian Green: This Government, as have previous Governments, regard the free movement of people as one of the absolute core essential benefits of membership of the European Union. In all the debates about where power properly lies, it is important to remember the first principles. This country has benefited from free movement, and continues to do so. That is the context in which any discussion of that sort would take place.
The hon. Member for Ilford South asked about people who go to places such as Spain. They can come here, but they cannot take a legal job. Of course, they can work illegally. He is quite right that illegal working over the years has been a significant problem in the immigration system. That is why one of the first things that I did as the Minister for Immigration was to mount a serious crackdown on illegal employers. The key to this—I choose my words carefully—is the employer. If we chase just the illegal workers, they can be replaced by another bunch of illegal workers the next month. We can go after the employers and fine them. If they do not pay the fines, we prosecute them. If we keep going back, they get the message. I am happy to report that we have had more raids and more arrests. We are collecting more fines than we used to, and there are complaints. I am pleased—for once—to read of complaints by employers in various local papers around the country. They claim that they are being hard hit by the UK Border Agency and that it is unfair on people who are trying to run a business. I do not agree with that. If someone is trying to run a business based on illegal working, I am delighted to hear that the UKBA is interrupting that procedure. As Minister, I have done everything that I can to facilitate that.
Mike Gapes: Is there not also an important point about enforcing the minimum wage? Frankly, the level of enforcement by the UKBA is rather limited. HMRC should work on this and people should be sent in to ensure that all workers are paid the minimum wage, because many of those who are paid less are undocumented and afraid for their status.
Damian Green: Yes, I very much take that point. Obviously, I am responsible for the UKBA, so responsibility for its immigration aspect falls directly to me. Indeed, one of the side effects of the activity that we are now undertaking more than ever before is to flush out employers who are trying to evade the minimum wage regulations. I agree with the hon. Gentleman. The minimum wage is the law and employers should obey the law. Anything that I can do as a Minister or that the UKBA can do as an institution to help enforce that will be done.
So I hope I have addressed the points raised by members of the Committee. As I have explained, this cannot go on beyond 2013. In the meantime, we can continue to apply transitional restrictions if there are compelling labour market grounds for doing so. We have taken advice from the independent Migration Advisory Committee. Its clear conclusion is that such a case exists. It would not be conducive to the public’s confidence in our immigration system or the Government’s commitment to reduce net migration to lift the existing restrictions after that clear finding. The current restrictions serve to minimise the impact of migration on the labour market, and, at the same time, help to ensure that labour migration takes place only where migrants possess skills that are in short supply.
The Government’s view is that maintaining the current restrictions is both legally justified and a proportionate response to the labour market situation. I therefore commend this measure to the House.