Draft Accession of Croatia (Immigration and Worker Authorisation)
Regulations 2013
The Committee consisted of the following Members:
† Blunt, Mr Crispin (Reigate) (Con)
† Bryant, Chris (Rhondda) (Lab)
† Burt, Lorely (Solihull) (LD)
† Hain, Mr Peter (Neath) (Lab)
Hamilton, Fabian (Leeds North East) (Lab)
† Harper, Mr Mark (Minister for Immigration)
† Harris, Rebecca (Castle Point) (Con)
Kaufman, Sir Gerald (Manchester, Gorton) (Lab)
† Loughton, Tim (East Worthing and Shoreham) (Con)
† Nokes, Caroline (Romsey and Southampton North) (Con)
† Opperman, Guy (Hexham) (Con)
Reevell, Simon (Dewsbury) (Con)
† Ruddock, Dame Joan (Lewisham, Deptford) (Lab)
Shannon, Jim (Strangford) (DUP)
† Sharma, Mr Virendra (Ealing, Southall) (Lab)
† Syms, Mr Robert (Poole) (Con)
† Ward, Mr David (Bradford East) (LD)
† Wilson, Phil (Sedgefield) (Lab)
Georgina Holmes-Skelton, Committee Clerk
† attended the Committee
Second Delegated Legislation Committee
Monday 10 June 2013
[Mr Graham Brady in the Chair]
Draft Accession of Croatia (Immigration and Worker Authorisation) Regulations 2013
4.30 pm
The Minister for Immigration (Mr Mark Harper): I beg to move,
That the Committee has considered the draft Accession of Croatia (Immigration and Worker Authorisation) Regulations 2013.
The regulations will apply transitional labour market restrictions to nationals of Croatia when that country joins the European Union on 1 July 2013. The Government made it clear that we will apply the toughest possible transitional restrictions to any country joining the EU in the future, and we are implementing these transitional restrictions because it is sensible to do so.
The treaty on the accession of Croatia makes provision for member states to apply transitional controls on labour market access for up to seven years to ensure an orderly transition to the enjoyment of full free movement rights. The regulations will apply transitional controls until 30 June 2018; the restrictions may be extended for a further two years beyond 30 June 2018 if to do otherwise would cause or risk a serious disturbance of the labour market. The transitional restrictions that the regulations put in place are as restrictive as the terms of Croatia’s accession to the EU permit them to be. Under the accession treaty we cannot apply restrictions that are more restrictive than those that applied to Croatian nationals under the immigration rules then in force when the treaty was signed in December 2011.
The effect of the regulations will be that Croatian nationals will generally have the right to reside in the UK as a worker only if they have obtained permission to work from the Home Office in the form of an accession worker registration certificate; they will have no right to reside by virtue of being a jobseeker. In line with our obligations, there are some exceptions to the requirement to obtain permission to work: for example, those who have worked legally and continuously in the United Kingdom for 12 months and certain family members will have free access to the labour market. The regulations also provide for the most highly skilled to be granted free access to the labour market from the outset.
Where permission is required, a Croatian national will need to obtain that before they commence employment. To obtain an accession worker registration certificate, a Croatian national will, as now, normally need to be sponsored by an employer that has been licensed by the Home Office under the points-based system arrangements. Applications for permission to work will generally be subject to points-based system criteria, which means that Croatian nationals seeking to fill a vacancy covered by tier 2 of the points-based system will qualify only where the job is skilled to national qualifications framework level 4, meets minimum salary criteria, and is one for which resident labour is not available.
Finally, the regulations will apply appropriate sanctions to ensure compliance. As with the measures applied to prevent the illegal employment of non-EU nationals, the regulations make it an offence to employ a Croatian national where the worker requires permission to work but does not have it; and they provide the Secretary of State with the option of imposing a civil penalty as an alternative to prosecution. The regulations will also make it an offence for a Croatian national to take employment in breach of the regulations. In such cases, liability for prosecution may be discharged by payment of a penalty.
4.33 pm
Chris Bryant (Rhondda) (Lab): It is a delight to serve under your chairmanship, Mr Brady, and to be able to support a measure introduced by the Government, not least because we would introduce an identical measure if we were in government.
Obviously, it is a delight that Croatia, a country scarred by civil war and massive problems over the past 25 years, is now able to join the European Union. It is a tribute to the European Union that Croatia has been able to change so many elements of the way it does business, its criminal justice system, and so on. In part, Croatia has explicitly done that so that it may join the European Union. It was a delight to hear the words of the Croatian President, Mr Ivo Josipovic, when he said only last week that Britain’s membership of the European Union is an intrinsic part of why his country wanted to join the Union, and he hopes that that will never change.
It is distressing to see that only 21% of Croatians voted in the recent European Parliament elections. We all need to bear that in mind.
Mr Robert Syms (Poole) (Con): That seems rather high.
Chris Bryant: The Government Whip says that seems high, but I hope all the parties represented in this Committee Room can make sure that next year the turnout in this country is rather higher.
Of course, in broad measure, the regulations are exactly the same as those introduced by the Labour Government in relation to Bulgaria and Romania. I notice that when the House of Lords debated the regulations, there was a question on why they apply for only five years, not seven. That is because that is what the provisions in the treaty allow for: after five years, the Government can make a submission to be allowed to derogate for a further two years. I presume that the Government intend to do that, although, in theory at least, under the treaty provisions they are not able to say so until that moment comes.
I have a few questions that I hope the Minister will be able to answer. Regulation 1(2) states that
“‘civil partner’ does not include a party to a civil partnership of convenience”.
Will the Minister tell us what a civil partnership of convenience is, and whether that means the French civil partnerships that were invented before gay marriage in France?
I have to say that the accession state national subject to worker authorisation rules in regulation 2 are phenomenally complex. There are sentences where one towel around one’s head will not suffice to enable one to understand precisely what is intended. Will the Minister explain paragraph (3), which states:
“A Croatian national is not an accession State national subject to worker authorisation if he was legally working in the United Kingdom on 30th June 2013 and had been legally working in the United Kingdom without interruption throughout the preceding period of 12 months ending on that date”?
Now, I think I understand what that means: someone who is working here now or next week and has been for 12 months will not be covered by these regulations, but how many people does that apply to? Those who are concerned about how many people might come from Croatia to the United Kingdom might be somewhat calmed by an understanding of how many people from Croatia are already working in this country, because that tends to be the most reliable indicator of future patterns. Paragraph (6) is almost incomprehensible. Will the Minister explain that to me as well? Similarly, paragraph (11) states:
“A Croatian national is not an accession State national subject to worker authorisation during any period in which he is a person who is exempt from all or any of the provisions of the 1971 Act by virtue of an order made under section 8(2) (exemption for persons specified by order) of that Act.”
To how many people does the exemption under that order apply?
In relation to highly skilled persons, I note that while the provisions are meant to be as tough as possible, one group of people who are exempted are those who have been
“awarded one of the following qualifications and applies for an EEA registration certificate,”
“a recognised bachelor, masters or doctoral degree”.
One of the concerns that many people in the UK have is about people from other EU countries with degree-level education coming to the UK to do jobs that certainly do not need a degree. Why is that regulation written in that way?
Regulation 10(3)(c)(i) states:
“The Secretary of State may…revoke a worker authorisation registration certificate where the document holder ceases working for the employer, or in the employment, specified in the document for a period of time that exceeds 30 days in total”.
We know that the Home Office sometimes finds it difficult to count days, as it did in relation to Abu Qatada, so I wonder what “30 days in total” means. Does that mean working days, and if so, is that defined in EU law or British law; or does it include non-working days?
Finally, many people in the country are concerned that unscrupulous employers can bring in people from other parts of the European Union, such as Croatia, Bulgaria or Romania, who are on low wages—much lower than in the United Kingdom—effectively traffick them and charge all their costs for travel and substandard accommodation against the national minimum wage, and thereby undercut local wages. If the penalty for doing that is so low that, frankly, it is in the employer’s interest to break the law and hope that they are not caught, or not worry about getting caught, that seems to be virtually an incentive to do so. I note that the penalty is just £5,000, and I suspect that the full penalty
has been used rarely in the past. Not only must the provisions be enforced, but the penalty must be sufficient to deter employers from engaging in such practices, which are not only exploitative of those who might come from Croatia to the United Kingdom to work, but might undercut wages in the United Kingdom. With those provisos and questions, the Opposition are more than happy to support the measure.4.40 pm
Tim Loughton (East Worthing and Shoreham) (Con): Mr Brady, as I have not been a member of one of these Committees for at least 10 years, I thought I might as well register my attendance by asking a few questions. When the hon. Member for Rhondda spoke about civil partnerships of convenience in his first question, I almost thought that we might have a rerun of our recent exchanges on the Marriage (Same Sex Couples) Bill. Notwithstanding that, I have some practical questions to ask the Minister.
I am glad that the Minister started off by saying that the regulations represent the toughest possible transition arrangements. The hon. Member for Rhondda might say that they mirror what the Labour party would have done in similar circumstances, but it is a shame that that was not the case when other central and eastern European countries acceded to the European Union. Their accession gave rise to many concerns about the impact that the number of accession country workers coming to this country would have on our labour market. Does the Minister have estimates of how many workers will come from Croatia? Does he know how many Croatian workers have come here already, as the hon. Gentleman has alluded to, and what sort of posts they are taking?
The week before last, I went to Warsaw and Prague with a group of Fresh Start MPs, and we spoke a lot about immigration and what had happened to people from Poland and the Czech Republic since their accession. A substantial number of Poles came to this country, many of whom have gone back. It was interesting to learn that many of them who came here were highly qualified, with degree-level qualifications—the education system in Poland is quite good—but they ended up doing relatively unskilled jobs for which they are hugely overqualified. Does the Minister anticipate that we will grant working permits to highly qualified people only to see them come and do jobs that do not require such qualifications, or will there be a restriction on the sorts of jobs that they can do? Will they have to stay in a job that requires higher qualifications to warrant their continued presence in this country’s work market while the restrictions pertain?
Can the Minister give some indication of how many people in Croatia work in agriculture? In Poland, it was interesting that although agriculture accounts for slightly less than 3% of the economy, it is claimed to involve up to 40% of the working population. We were also told that the agricultural system is highly efficient, but those figures do not gel if so many people are needed to operate such a small part of the economy. What percentage of potentially more mobile Croatians work in agriculture and might seek to come here? Again, they might be significantly overqualified for the jobs that they do.
I turn to reciprocal benefits. Most of us welcome the widening of the EU, and Croatia is an obvious candidate for membership. I believe that it will be a friendly nation
in partnership on some of the reforms that we would like to see in the EU. What advantages will be available to UK citizens? How many UK citizens already reside in Croatia? Have any estimates been made of how many opportunities will open up for UK citizens as a result of Croatia’s accession? Will Croatia enforce reciprocal restrictions on UK citizens who go to Croatia, based on their qualifications—a points-based system—or on retirees who want to take advantage of the Adriatic coastline? We have heard about the restrictions that will be placed on Croatians coming here; it would be useful to know about the advantages—or lack of advantages—to United Kingdom citizens who want to go and work, settle or even retire permanently in Croatia.Aside from those few questions, we welcome the spirit of the regulations. They are clearly intended to make sure that Croatia’s accession to the EU is a happy and welcome one and that we do not have some of the problems that arise from large-scale movements of people that there were some years ago, when nationals from other central and eastern European countries came into the UK.
4.45 pm
Mr Harper: Let me see whether I can deal with that selection of questions, but first I welcome what the hon. Member for Rhondda said about his broad welcome for the regulations. I was also interested to hear the comments, as he reported them, of the Croatian President and to hear that country’s welcome acknowledgment that Britain plays an important role in the EU. The hon. Gentleman will of course note that it is the Prime Minister’s policy to renegotiate our membership, but in a way that enables him to put that proposition to the British people. Given the President of Croatia’s keenness to keep Britain within the European Union, I am sure that the President will play his part in helping to achieve that sensible renegotiation of our terms of membership. I look forward to that and will pass those remarks on to the Prime Minister, so that he is fully aware of them.
The hon. Gentleman mentioned the extension of the five-year period referred to in the regulations to seven years, so I will let him know what we did with the regulations on Bulgaria and Romania. At the end of the five-year period, we asked the Migration Advisory Committee to carry out an evidence-based review of the state of the labour market to see whether it thought that the two-year extension was justified. That committee produced a very solid evidence base for the extension and the Government therefore chose to extend to the full seven years available under the legislation. All other things being equal, I would assume that a similar evidence-based process will take place in 2018, with the Government asking the Migration Advisory Committee to gather any such evidence.
I had correctly anticipated the answer, even before inspiration struck me, to the hon. Gentleman’s first specific question about the regulations, which was about civil partnerships of convenience. I will choose my words with care, because I read some of the debates in other Committees of the House and I do not wish to prolong those debates. I hope he will be pleased to learn that, effectively, a civil partnership of convenience is, in a spirit of equality, a way of talking about sham marriage
as it applies to civil partnerships. Thankfully, people of the same sex will soon be able to marry legally in the United Kingdom. However, there may be people who want to have the equivalent of a sham marriage but who are unable to marry legally because they are of the same sex; we want to make sure that they cannot use a civil partnership as a sham marriage.Chris Bryant: How does that apply to a French pacte civil de solidarité? If a Croat were in a PACS with a French person, would they be allowed in or not?
Mr Harper: The provision is for situations where we think the civil partnership is the equivalent of a sham marriage. We will implement our checking processes in exactly the same way for a civil partnership between a non-EU national and an EU national as we do for somebody who we think has married because they are seeking an immigration advantage rather than for the usual, genuine reasons.
The hon. Gentleman asked about regulation 2(6). It is about people with dual nationality: somebody who is both Croatian and French, for example, would not be subject to worker authorisation because they of course would be entitled to be in the United Kingdom by virtue of being French. Regulation 2(11)—I have to admit I was not entirely certain about it when he asked his question—refers to people who are diplomats and so are exempt from the regulations.
The hon. Gentleman asked about the 30-day period. In regulation 10(3)(c)(i), 30 days refers to 30 normal calendar days, and—as he was very keen to know exactly the relevant period of time—is inclusive. He also asked about the provision regarding highly skilled people, including those in possession of a degree or diploma. It is confined to those who obtained those qualifications in the United Kingdom and effectively replicates the post-study work provisions of tier 1 that were in force in December 2011, to which I referred in my opening remarks. We have to provide regulations no tougher than those that were in force when the treaty was signed, under the standstill clause, so these implement the toughest possible regulations under the terms of the accession treaty.
The hon. Gentleman also made a sensible general point at the end—although I think he conflated two points—when he talked about people who are employed in the United Kingdom on very low wages. He referred to the national minimum wage and the penalties in the regulations and he also touched on people who have been trafficked. We need to be careful, as there is a difference between someone who is working lawfully for low wages, albeit more than the national minimum wage, in a low-paid occupation and someone who has been trafficked to the UK, is being held against their will and has been lured here on false pretences. There will be a number of criminal sanctions available if someone has been trafficked and we should not muddle those two things.
The Government take human trafficking very seriously. Police forces across the United Kingdom take it increasingly seriously. The hon. Gentleman’s serious point on prosecutions and the seriousness with which we take violations of the national minimum wage legislation was well made. We are taking that question increasingly
seriously and have set up a number of taskforces in localities where we think there are particular issues: for example, we set up one recently, which crosses a range of Government Departments, in Wisbech in Cambridgeshire to deal with some of the issues there. His point was well made, but I think there is sufficiently tough enforcement.Chris Bryant: I am sorry, but I think the Minister is wrong about regulation 2(11). Regulation 2(10) is about diplomats whereas regulation 2(11) is quite different and concerns provisions of the Immigration Act 1971. Perhaps he can write to me.
Mr Harper: I will either write to the hon. Gentleman or come back to him in a moment or two.
I realise that I skipped over his mention of regulation 2(3). Although he said he had a towel around his head and could not follow it, he interpreted it completely accurately. A Croatian national who had been working legally for 12 months prior to the accession of Croatia would not be subject to the controls outlined in the regulations. In my opening remarks I said that if someone had been working here for a 12-month period, they would have the right to reside and the regulations would not apply to them. I think that covers all the hon. Gentleman’s remarks; the others were made by my hon. Friend the Member for East Worthing and Shoreham.
My hon. Friend’s primary point was about the concerns that people might have every time there is a new accession country because of what happened in the past. He is quite right. When the bulk of the eastern European countries joined the European Union the previous Government did not have any transitional controls. We were the only major country not to have them, so a significant number of people came to the United Kingdom. To be fair, most of them came here to work, but in a number of communities across the country those numbers were significant. That is why on both the accession of Bulgaria and Romania and the accession of Croatia there is a great deal of public concern. It is important that the Government have tough controls.
Both my hon. Friend and the hon. Gentleman asked how many Croatian nationals were already working in the United Kingdom. I do not have those figures to hand, so I will write to them to set those numbers out; I will copy my letter to members of the Committee and to you, Mr Brady. There are reasonably good figures on how many foreign nationals of various nationalities are working in the United Kingdom, so I think we should be able to furnish the Committee with those statistics.
My hon. Friend the Member for East Worthing and Shoreham also talked about those involved in agricultural work. I think he was alluding to the fact that at the end
of this year the seasonal agricultural workers scheme, which is currently open only to nationals of Bulgaria and Romania, comes to an end. There have been suggestions that we should keep that scheme open or relaunch it and make it open to those from Croatia. From memory, the judgment in the Migration Advisory Committee’s report suggested that the likely availability of agricultural labour from Croatia would not be sufficient or deal with the issues raised by the industry. That is, of course, a very detailed and thorough report and the Government are considering it. We will shortly set out our view about whether there needs to be a successor scheme and, if so, what sort of scheme it should be.My hon. Friend asked about estimates of the numbers of people from Croatia who are already here. They are not estimates but reasonably robust statistics that I will furnish to the Committee. As for the numbers of those who are expected to come, I will give the same answer I gave about Bulgaria and Romania. The Government do not make forecasts regarding those expected to come to the UK from individual countries, and we have not done so in this case. We do not think forecasts by any economists or statisticians are likely to be particularly accurate, so we have not indulged in that process. What we have done is put in place proper controls so that people will come here only to work.
My hon. Friend asked whether Croatia would impose reciprocal restrictions. No, Croatia will not: the terms of the accession treaty do not allow it to do so. UK nationals will be able to exercise full free movement rights in Croatia as they can in any other EU member state from the moment of accession on 1 July.
The hon. Member for Rhondda made an extra point about salaries and the penalty. There will be a salary test for an accession worker registration certificate. Somebody must be paid the same as the UK worker doing the same job. I hope that would rule out people being brought over to the UK to undercut pay.
Finally, let me flesh out my reply on regulation 2(11). It refers to diplomats with a small “d”—that is, consular officers who are not exempt under section 8(3) of the 1971 Act. I am sure that he and I both had that information on the tip of our tongue and I am ashamed that neither of us knew the answer to that question. I have no idea how many people it applies to. If we have that information to hand, I will add it to my statistical update to the Committee at the earliest opportunity.
With that, I think I have covered all the questions from the hon. Gentleman and my hon. Friend, and I hope that the Committee is content with these regulations.