Drawn to the special attention of the House
Statement of changes in Immigration Rules (HC 556)
Date laid: 19 February 2024
Parliamentary procedure: negative
These Regulations include two separate sets of changes in the Immigration Rules, relating to the Ukraine support schemes and health and social care visas. Both sets of changes suffered from poor explanations in the Explanatory Memorandum (EM). For the Ukraine measures, the EM did not explain a parallel policy change, made in guidance, that was critical context. In several other areas the explanation of the policy, or its rationale, was inadequate or unconvincing. The Home Office’s contention that the changes will only have a “small” effect, but that providing advance notice could have prompted an “overwhelming” surge in applications, requires further explanation.
In relation to the health and care measures, we are particularly exercised by the lack of impact information, given the concerns expressed about the effect of the changes on the sector. The absence of such information makes it impossible for Parliament to carry out its scrutiny function properly and to form a view on the extent to which service provision in the health and care sector will be impacted, and we will be writing to the Minister to request further details. There are also significant elements of information missing from this section of the EM, including any explanation for the lack of a consultation. The Home Office told us was because it feared a ‘closing down sale’ if the measures became known in advance, but, if so, there appears to be an inconsistency in the Home Office’s logic, as these policy changes were pre-announced on 4 December 2023. We would expect that an announcement in Parliament would have at least as much effect on applications as a consultation.
This is another example in the long list of recent instruments for which the Home Office’s information provision has been inadequate. We will continue to press the Home Office to improve, and support it in doing so where we can, but we will also continue to highlight examples where it falls short.
This Statement of Changes is drawn to the special attention of the House on the ground that the explanatory material laid in support provides insufficient information to gain a clear understanding about the instrument’s policy objective and intended implementation.
Background
1.Amongst other changes, this instrument:
- makes changes to the schemes that allow those fleeing the war in Ukraine to enter the UK; and
- narrows the eligibility criteria for those people entering the UK as health or social care workers and removes the provision for dependants to accompany or join people entering the UK as workers in these occupations.
2.We have received a joint submission on this instrument from the Immigration Law Practitioners’ Association and the Work Rights Centre. This submission, and the Government’s responses to our questions that cover the issues raised, have been published on our website.1
Changes to the Ukraine schemes: overview and rationale
3.The changes to the Ukraine schemes, which came into force on the day the instrument was laid (19 February 2024) include:
- Closing the Ukraine Family Scheme (UFS) to new applicants. The UFS allowed a person who is settled in the UK to sponsor Ukrainians in their family to join the sponsor in the UK.
- A reduction in the period of permission granted to new applicants under the Homes for Ukraine (HFU) scheme, from 36 months to 18 months. HFU allows a UK household to sponsor Ukrainians if they can demonstrate their commitment and ability to provide suitable accommodation for a minimum period of six months.
- Alongside this reduction, although not contained in the instrument, the Home Office is introducing a new Ukraine Permission Extension (UPE) scheme, which will allow those who are in the UK on a Ukraine humanitarian scheme to extend their stay by an additional 18 months.
- Applying the General Grounds for Refusal in Part 9 of the Immigration Rules2 to the Ukraine schemes. These were initially omitted, “so as not to lead to refusals of visas that would have been disproportionate at the height of the invasion”.
- Although not contained in this instrument, the Home Office has also tightened the sponsor eligibility criteria under the HFU. Prior to the changes, sponsors were required to hold a minimum of six months permission to remain in the UK. Following the amendments, sponsors are required to be British, Irish or ‘settled’ (holding indefinite leave to remain) in the UK.
4.The Home Office states that the reason for the closure of the UFS is “to rationalise the offer for Ukrainians”. Specifically, the UFS was introduced with “broad eligibility criteria to facilitate the urgent need for a high-volume migration event”, but “given the length of time since the invasion of Ukraine (almost 2 years) and in light of the availability and success of the HFU, the government consider that it is now right to refine our offer in favour of the more sustainable Homes for Ukraine Sponsorship Scheme.” The Home Office believes that the HFU is more sustainable because, for example, it involves accommodation suitability checks, safeguards such as DBS checks and funding to encourage and support sponsors. The Home Office also notes that UFS applications have dropped significantly, from approximately 26,800 in March 2022 to approximately 1,000 in September 2023.
5.The Home Office states that the closure of the UFS will affect only a “small proportion” of potentially eligible individuals, as “the same Ukrainian nationals who qualify under UFS can qualify under HFU if their family member is approved as a sponsor and they meet the other requirements of the rules. UFS sponsors already have to be British or Irish citizens or settled in the UK (as will now be the case for HFU sponsors)”. The Home Office says that those who would have been eligible under UFS, but are not eligible under HFU, include third country nationals who are either not an immediate family member of a Ukrainian national, or who are an immediate family member but are not accompanying or joining their Ukrainian national family member in the UK.
6.Regarding the reduction in the period of permission for new applicants under HFU, the Home Office says that this is to “prevent a significant imbalance” between the UK and EU schemes, as the EU system grants permission for only one year at a time.
Changes to HFU sponsorship criteria
7.The submission we received states that the changes to the HFU sponsorship criteria will reduce the availability of homes, including by excluding those who are themselves on Ukraine schemes from acting as sponsors. The Home Office said that these people “were never intended to be allowed to function as sponsors themselves”. It reports that, currently, such “chain sponsorships” constitute 10.5% of all Ukraine sponsorships. The Home Office notes that people seeking to join a family member in the UK may still have recourse to an application under Article 8 of the European Convention on Human Rights (the right to respect for private and family life).
8.This change in policy, introduced via guidance, was highlighted in the written statement relating to the measures3 and analysed at some length in the Economic Note accompanying the instrument. We conclude that it was an important part of the context for the Statement of Changes and should have been discussed more fully in the Explanatory Memorandum (EM).
Breach of the 21-day rule
9.As noted above, the changes to the Ukraine schemes were brought into force on the same day the instrument was laid, 19 February 2024, breaching the convention that a negative instrument should be laid in Parliament at least 21 days before it comes into effect. The Home Office says that it considered “this was justified and proportionate in order to maintain the orderly operation of the immigration system”, and specifically to avoid a “surge in applications”.
10.However, as mentioned above, the Home Office also argues that the changes will only affect a “small proportion” of potential applicants. We therefore asked further questions on why it was necessary to bring the measures into force immediately. The Home Office said:
“We know from closing visa routes in the past that announcing a closure tends to lead to an increase in last minute applications, a proportion of which may be speculative in an attempt to qualify for the visa route. This sharply increases the workload for caseworkers, impacts operational resilience of the immigration system, and in turn, increases visa processing times overall”.
11.The Government is arguing both that the effect of the changes is small, but also that they may lead to a “substantial increase in application levels in advance of the deadline” that could “overwhelm the system”. However, the Home Office says that such a “surge” would be “arguably unnecessary […] because other routes for Ukrainians to come to the UK remain open”. The House may wish to press further on why, if most applications would be unnecessary, the Government believes there could be such a “surge” and hence why this is an adequate justification for breaching the 21-day rule.
Lack of consultation
12.The Home Office used similar arguments to explain the lack of a consultation on the measures, repeating that the changes affect “a small proportion of potentially eligible individuals”, but suggesting that consultation outside the public sector would have risked prompting a surge in applications. As set out in the previous paragraph, we are not clear why such a surge would arise and therefore why this is an adequate justification for not consulting.
13.The Government did state that it had held discussions with the Ukrainian Embassy but did not report the outcome. In response to our questions the Home Office said that “we cannot divulge what was said in confidential discussions with the Ukraine Embassy. However, post-announcement we are engaging with stakeholders in the Ukrainian community and relevant organised groups”. We understand why discussions with an embassy might be confidential, but the outcome is that the views of those representing Ukrainians were not discussed in the explanatory material. Given that the changes are now public, and the Home Office has held additional discussions since, the House may wish to enquire further on what those views are.
Interaction of the restrictions under HFU with the UPE
14.The submission argued that the reduction in the period of permission under HFU, from 36 to 18 months, could impact a migrant’s ability to find employment and accommodation. In response to questions on this point, the Home Office stated that, in combination, the HFU and UPE schemes provide “36 months of certainty for the Ukrainian nationals who seek sanctuary in the UK”. If all those accepted under the revised HFU scheme have permission for 18 months plus access to an 18-month extension, we do not understand why it was necessary to replace the previous 36-month scheme. The House may wish to explore this point further.
15.More generally, we welcome the proposed introduction of the UPE to bring greater certainty around the process of extending stays in the UK under the Ukraine schemes. The Home Office told us that the intention is to lay the necessary legislation for UPE in autumn 2024, or in any case with sufficient time before the scheme opens (early 2025). We expect this legislation to be accompanied by sufficient information about the impact of the UPE, including on host families, for Parliament to understand fully its effects.
Applying the ‘General Grounds for Refusal’
16.We asked the Home Office why applying the General Grounds for Refusal in Part 9 of the Immigration Rules was appropriate now, when it was not at the beginning of the war—even though other government material suggests that the situation on the ground in Ukraine is little changed.4 The Home Office’s response was unilluminating, saying “the conflict, the urgency of the situation in Ukraine and the responses to it have evolved”. Given the “full-scale” continuation of hostilities, the House may wish to probe further on why it has now become appropriate to apply the General Grounds for Refusal.
Provisions for health and care workers
17.The changes relating to new applicants on the Health and Care Worker route for Skilled Workers are as follows:
- narrowing the eligibility for workers to be sponsored, from all posts to only those where the sponsor is registered with the Care Quality Commission (CQC) and is currently carrying on a regulated activity. This change applies in England only; and
- removing the provision for dependants to accompany or join workers sponsored in these occupations, apart from children born in the UK.
18.Explaining the rationale for the changes, the Home Office says that they are:
“In response to high levels of non-compliance and worker exploitation and abuse, as well as unsustainable levels of demand. In the year ending September 2023, 83,072 visas were granted for care workers and a further 18,244 visas for senior care workers, comprising 30% of all work visas granted. In addition, there were 250,297 visas granted for work-related dependants, 69% of which were for Health and Care Worker dependants.”
19.There have also been recent press reports of abuse of the visa rules in this area.5
Lack of an Impact Assessment
20.The submission we received argued that the changes would deter overseas workers from pursuing employment in the UK care sector, and that this could worsen existing labour supply pressures. For example, the submission quoted data suggesting that in 2022–23, 9.9% of social care jobs were vacant, there were on average 152,000 vacancies in the adult care sector at any time, and the turnover rate was 30%.
21.The EM contained no analysis of the impact of the measures. The EM did say that an Impact Assessment (IA) “was being prepared” that would cover both these changes and “a wider package of Rules changes being laid in March (which also affect the same group)”.6 The Home Office stated that given the “short timeframe” between the two sets of Rules, and “resource constraints”, “it would not have proved feasible to deliver two Impact Assessments”.
22.Given the “short timeframe” until the remaining measures are implemented, we asked the Home Office why these changes could not be delayed so that all the changes could be made together and the IA would be available. The Home Office replied that “the changes being bought in are subject to a rigid timeframe given the pressing need to tackle a rising volume of applications and concerns about abuse within the adult social care sector”. If the Home Office wishes to set “rigid timeframes” for introducing legislation, these should allow due process to be completed, including the completion of analysis of the effects of the changes, about which concerns have been expressed.
23.We had lengthy exchanges with the Home Office about the absence of an IA for one of last year’s Statements of Changes in Immigration Rules, including asking the then Minister, Lord Murray of Blidworth, to give oral evidence.7 In that evidence session, Lord Murray accepted the importance of transparency, scrutiny and of publishing IAs. That statement of intent is all very well, but little appears to have changed in practice. At the least, a summary of the impact information for these measures should have been included in the EM; ideally, the instrument should have only been laid when the IA was available.
24.In its replies to us, the Home Office did note that an estimate of the impacts of the changes on migrant inflows was published on 4 December 2023.8 This suggests that the CQC restrictions will reduce the number of foreign health and social care workers entering the UK by 20,000 per year. It contains a figure for the expected reduction in the number of dependants coming to the UK as a result of the ban (120,000), but it assumes that there will be no reduction in the number of workers themselves who come because of the dependant ban. The analysis gives reasons including: a high level of global labour supply; workers seeking to come to the UK without their dependants; and a reduction in demand, given the CQC policy change. This is a helpful, although incomplete, analysis of the impact of the policy change, but, inexplicably, it was not summarised or even referred to in the EM. Furthermore, the Home Office has provided minimal evidence for its assertion that the dependant ban will have no effect on worker numbers. In contrast, we are aware of significant concern in the social care sector about the effects of the changes.9 We will be writing to the Minister (Tom Pursglove MP) to ask for additional information about this aspect of the Statement of Changes, including with reference to the views of the Department for Health and Social Care.
25.For both the health and care measures, and the Ukraine scheme changes, there is no mention in the EM of whether the Government has carried out an Equalities Impact Assessment (EIA), which is intended to assess the impact of policy proposals on individuals with protected characteristics. When we questioned the Home Office further, it responded that EIAs “are carried out and submitted to Ministers when they are being advised on policy changes, including for the Health and Care Worker visa policy changes. Government has agreed to publish this, alongside the Regulatory Impact Assessment, in due course”. As with the IA, the EIA is an important part of the supporting information on a policy change that should be available when an instrument is laid. We expect the EIA to be published alongside the IA when the forthcoming “wider package” of rules changes is laid.
Consultation
26.The Home Office appears to have undertaken no consultation at all on the health and social care measures, with the EM stating only that “this would be disproportionate given the nature of the changes”. Again, we note that opinion in the care sector does not necessarily support the Government’s view that the dependant ban will not affect the supply of overseas workers.
27.In response to our further questions in this area, the Home Office said that the Government wished to avoid a “closing down sale”; in other words, that “an external consultation would carry an unacceptably high risk of a prolonged spike in applications pre-empting the rules changes”. In theory, this might be a sound argument. However, we cannot help observing an inconsistency, as the Rules changes were publicly pre-announced on 4 December 2023.10 We would expect that an announcement in Parliament would have at least as much effect on applications as a consultation and, therefore, the suggestion that the consultation was omitted to avoid a closing down sale is unconvincing; as is the argument in the EM that a consultation would be “disproportionate”.
28.Given the concern in the sector about the impact of the measures, we expect the Home Office to keep their effects under close review.
Conclusion
29.We noted in our 15th Report of this session, in relation to a separate instrument, that the Home Office’s information provision has fallen short much more frequently than in the case of any other department. This is yet another example, in which explanations have lacked key information, have been unconvincing or have given rise to difficulties in understanding the consistency of the Department’s logic. We noted in our 15th Report that we have written to a minister in the Home Office to seek assurances that the Department will address the shortcomings we have identified in its information provision, and we are writing again to follow up similar issues raised in this report. We will relate the Home Office’s responses in the near future. We will also continue to press the Department to improve its performance, and support it in doing so where we can, while highlighting any further examples where it falls short.
1 SLSC, ‘Scrutiny evidence’: https://committees.parliament.uk/committee/255/secondary-legislation-scrutiny-committee/publications/8/scrutiny-evidence/.
2 These are cross-cutting suitability requirements that must be met on most routes in addition to validity and eligibility requirements; for example, they act to exclude serious criminals.
4 For example, the Economic Note to this instrument states that “the full-scale continuation of hostilities in the region demonstrates the pertinence and sustained need for the UK’s humanitarian protection schemes”.
5 ‘One in four foreign care workers abuse UK visa rules’, The Times (18 February 2024): https://www.thetimes.co.uk/article/one-in-four-foreign-care-workers-abuse-uk-visa-rules-lpqzmsk6g [accessed 4 March 2024].
6 The “wider package” of changes includes an increase to the salary threshold for health and care workers. Further details are contained in: HC Deb, 30 January 2024, cols 40–2WS.
7 35th Report (Session 2022–23, HL Paper 177), paras 53–68; and 40th Report (Session 2022–23, HL Paper 197), paras 1–16.
8 Home Office, ‘Legal migration statement: estimated immigration impacts’ (4 December 2023): https://www.gov.uk/government/publications/legal-migration-statement-estimated-immigration-impacts/legal-migration-statement-estimated-immigration-impacts-accessible#illustrative-volume-impacts-of-policy-on-inflows [accessed 4 March 2024].
9 For example, Care Provider Alliance, ‘Care Provider Alliance responds to migration changes, as minimum wage rises without extra funding’ (4 December 2023): https://careprovideralliance.org.uk/press-release-cpa-responds-to-migration-and-minimum-wage-changes [accessed 5 March 2024].